IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.10734 OF 2012 (MV) BETWEEN 1. LAKSHMIDEVAMMA W/O LATE RAMAIAH AGED ABOUT 35 YEARS, 2. MADHU S.R.
S/O LATE RAMAIAH AGED ABOUT 20 YEARS 3. SUMA S.R.
D/O LATE RAMAIAH AGED ABOUT 16 YEARS 4. MANJAMMA W/O LATE RAMAIAH AGED ABOUT 25 YEARS 5. ERALINGAIAH S/O MYLAIAH AGED ABOUT 63 YEARS 6. GANGAMMA W/O ERALINGAIAH AGED ABOUT 53 YEARS APPELLANT NO.3 IS MINOR, REP. BY ITS NATURAL GUARDIAN HER MOTHER i.e., 1ST APPELLANT ALL ARE R/AT SHETTIHALLI VILLAGE , HAGALAVADI HOBLI, GUBBI TALUK, TUMKUR DISTRICT, NOW R/AT C/O SREEMATHI, BYRAVESHWARA NILAYA, KUVEMPUNAGAR, TUMKUR TOWN-572 108.
... APPELLANTS (BY SRI. K R RAMESH, ADVOCATE) AND 1. SRI. LAKSHMINARAYANA S/O NARASIMHAIAH AGED ABOUT 43 YEARS HULIKUNTE VILLAGE, KASABA HOBLI, KORATAGERE TALUK TUMKUR DISTRICT-572 108.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., BRANCH OFFICE, BAGIC, KNV COMPLEX, 4TH CROSS, VIDYA NAGAR, TUMKUR TOWN -572 108. REP. BY ITS BRANCH MANAGER ... RESPONDENTS (BY SRI. L P SURESH, ADVOCATE FOR R1 SRI. P.B. RAJU, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: 05.6.2012 PASSED IN MVC NO.281/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT-10, TUMKUR, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellants-claimants are before this Court, aggrieved by the dismissal of the claim petition filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of deceased-Ramaiah under the judgment and award dated 05/06/2012 in M.V.C.No.281/2009 on the file of the Principal Senior Civil Judge and MACT-10, Tumkur.
2. The claimants are legal representatives of deceased- Ramaiah, filed claim petition under Section 166 of Motor Vehicles Act, seeking compensation for the death of Ramaiah due to injuries sustained by him in a road traffic accident that occurred on 19-7-2008. It is stated that on 19-7-2008, when the deceased along with his friends standing on the extreme end of the left side of the Chelur- Hosakere road, a Luggage Auto bearing Reg.No.KA-06-B- 1585 being driven by its driver came in a rash and negligent manner and dashed against the deceased. Due to which, he sustained fatal injuries on his head and other vital parts of the body. Immediately, he was shifted to P.H.C. Chelur and after first aid he was shifted to Government District Hospital, Tumkur, further he was referred to NIMHANS, Bengaluru. Subsequently, the injured succumbed to the death due to fatal injuries suffered by him. It is further stated that the deceased was working as a tractor driver and was earning Rs.6,000/- per month as salary and Rs.50/- per day as batta.
3. On service of notice, respondent No.2-Insurance Company appeared before the Tribunal and filed its statement of objections stating that the policy issued with respect to Luggage Auto bearing Reg.No.KA-06-B-1585 was not in force as on the date of accident. Further it was contended that there is three days delay in lodging the complaint and that too in the complaint it has been mentioned that the unknown auto caused the accident. The MLC is not registered and there is no visible damages noticed on the Luggage Auto. Therefore, prays for dismissal of the claim petition.
4. Claimant No.1-wife of the deceased examined herself as PW-1 and examined two more witnesses as PW-2 & 3, got marked documents Ex.P-1 to Ex.P-11. Assistant Manager of Respondent No.2-Insurance Company was examined as RW-1 and got marked documents as Ex.RW-1 & 2.
5. The second issue framed by the Tribunal is as follows:
“2. Whether the claimants prove that on 19-7-2008 at about 1.30 p.m. near Madderahalli on N.H.4 Kachenahalli gate, Chelur hobli, Gubbi taluk deceased met with an accident due to wrongful use of Luggage Auto bearing Reg.No.KA- 06-1585 by its driver, thereby the deceased suffered fatal injuries and died in the hospital?”
The second issue was answered in the negative as the claimants failed to prove the accident and the claim petition was dismissed. Aggrieved by the same, the claimants are before this Court in this appeal.
6. Heard the learned counsel for the claimants and learned counsel for respondent No.2-Insurance Company. Perused the lower court records.
7. Learned counsel for the claimants submits that the accident had taken place on 19-7-2008, whereas the complaint was lodged on 22-7-2008. As per Ex.P-1-FIR, the reasons stated for delay in lodging the complaint was that as there was no other person to look after the deceased when he was inpatient in the hospital. Therefore, the complaint could not be lodged in time. Further learned counsel submits that the Tribunal only relying on Ex.R-3, where it is noted that the deceased suffered injuries due to skid and fall from the bike, dismissed the claim petition without looking into other documents which indicates that the deceased suffered accidental injuries and subsequently succumbed to the death.
8. On hearing learned counsels for the parties and on perusal of the lower court records, the only question which arises for consideration is whether the Tribunal is justified in dismissing the claim petition.
9. The alleged accident had taken placed on 19-7-2008, when the deceased was standing along with his friends on the extreme end of the left side of the Chelur-Hosakere road, a Luggage Auto bearing Reg.No.KA-06-B-1585 being driven by its driver came in a rash and negligent manner and dashed against the deceased, due to which he sustained grievous injuries and succumbed to the injuries on 22-7-2008. Admittedly, the complaint was lodged by one Sri. Shivalinga on 22-7-2008 in respect of accident in question after the death of the deceased. On perusal of Ex.P-1, it could be seen that the complaint lodged is against unknown Luggage/Goods Auto. The Luggage Auto is seized under seizer mahazar on 16-10-2008. No details are forthcoming as to when the Luggage Auto was implicated and when the statement of the owner of the Luggage Auto was recorded. The Ex.P-5-Medical General Form No.34- Post Mortem Report indicates that the cause of death is due to failure of major organs because of intracranial Hemorrhage, it won’t indicate that the deceased died due to the accidental injuries. Ex.R-3 is case sheet of NIMHANS Hospital, which indicates that the deceased came with history of injuries sustained by him due to skid and fall. The Ex.P-7 is the IMV report, which indicates that there were no visible damages found on the alleged Luggage Auto.
10. Thus, it could be said that the claimants have failed to prove the accident and accidental death of the deceased-Ramaiah. Further the claimants have also failed to examine the complainant/Shivalinga who had lodged the complaint on 22-7-2008. The above circumstances make it clear that the claimants have failed to prove the accident. The judgment and award passed by the Tribunal is neither perverse nor erroneous so as to warrant interference.
Accordingly, appeal is dismissed.
Sd/- JUDGE SMJ