IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1599 OF 2015 (MV) BETWEEN:
MR. PRASANNA S.R., S/O SRI.RAMAKRISHNAPPA, AGED ABOUT 20 YEARS, R/AT SEESANDRA VILLAGE, KOLAR TALUK, KOLAR DISTRICT.
(BY SRI.LOHITH M., ADVOCATE) AND:
1. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, SUNDARAM TOWERS, NO.46, WHITES ROAD, ROYAPETTAH, CHENNAI – 600 014.
REPRESENTED BY ITS MANAGER.
ALSO HAVING BRANCH OFFICE AT: NO.187/2, RAGHAVENDRA PLAZA, HOSUR MAIN ROAD, WILSON GARDEN, BANGALORE – 560 027.
... APPELLANT REPRESENTED BY ITS BRANCH MANAGER.
2. MR.SUBRAMANIAN P., S/O PALANISAMY S.C., MAJOR, NO.147/3, FLAT NO.A4, 3RD MAIN ROAD, L.B.SHASTHRINAGAR, H.A.L. POST, BANGALORE – 560 017.
... RESPONDENTS (BY SRI K SURYANARAYANA RAO, ADVOCATE FOR R1; R2 NOTICE D/W V/O DATED 26.09.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.11.2014 PASSED IN MVC NO.2132/2012 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDGE & XXXIII ACMM, MEMBER, 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 in appeal, aggrieved by the dismissal of the claim petition under judgment and award dated 24-11-2014 in MVC.No.2132/2012 on the file of the VIII Additional Small Causes Judge & XXXIII ACMM, Member- MACT, Bangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained in the alleged road traffic accident. It is stated that on 08-9-2010, when the claimant was returning from his school on his bicycle from Kembodi Village, near Seesandra Village, Alto car bearing No.KA-03-MH-7435, came in a high speed with rash and negligent manner and dashed to the claimant’s bicycle. Due to which, the claimant sustained grievous injuries. He was immediately shifted to R.L.Jalappa Hospital at Kolar and the complaint was lodged on 08-11-2010 by father of the claimant.
3. On service of notice, respondent No.2–Owner of the Alto car remained absent, whereas, respondent No.1– Insurer appeared before the Tribunal and filed its objection statement denying the claim petition averments and also involvement of the Alto car. It is further stated that the Alto car is falsely implicated in the alleged accident to claim compensation in collusion with respondent No.2. There is delay in lodging the complaint. Hence, prayed for dismissal of the claim petition.
4. The Tribunal based on the pleadings of the parties framed the following issues for its consideration:
1. Whether the petitioner proves that, on 08.09.2010, at about 17:00 hours, near Seesandra Village Gare, NH-4, Kolar-Malabagal Road, Kolar Taluk and District, the Road Traffic Accident took place due the actionable negligence of the driver of car bearing registration No.KA-03-MH-7435 by which the petitioner sustained injuries?
2. Whether the petitioner proves that petitioner is entitled for compensation? If so, what amount and from whom?
3. What order or Award?
5. The claimant examined himself as PW-1 apart from examining Doctor as PW-2 and two more witnesses as PWs-3 and 4. The claimant also got marked documents Exs.P-1 to P-20. The respondents examined RW-1 and got marked documents Exs.R-1 to R-3.
6. The Tribunal on appreciating the material on record, answered issue No.1 in the negative and dismissed the claim petition. Hence, the claimant is before this Court in this appeal.
7. Heard the learned counsel for the appellant-claimant and learned counsel for the respondent–Insurer. Perused the material on record including the lower court records.
8. Learned counsel for the appellant-claimant would submit that the Tribunal committed an error in dismissing the claim petition filed under Section 166 of the Motor Vehicles Act. It is his further submission that the Tribunal could not have dismissed the claim petition solely on the ground that there is two months delay in lodging the complaint. He further submits that PW-3-eye witness has given the Alto car number involved in the accident and PW-4 is the father of the claimant who is the complainant, has deposed in his evidence that his wife is a mentally retarded person and he was not having money for providing medical treatment to his son. As the accident had occurred in the month of September, which was season for cultivation, he had concentrated on cultivation to eke out his livelihood. As such, there is delay in lodging the complaint. Thus, the learned counsel submits that the Tribunal committed an error in dismissing the claim petition only on the ground that there is delay in lodging the complaint.
9. Per contra, learned counsel for the respondent- insurer would submit that the Tribunal is justified in dismissing the claim petition filed by the claimant. It is further submitted that the vehicle in question is not at all involved in the accident. The PW-4-claimant’s father in his complaint-Ex.P-1 states that the accident occurred involving Scorpio car, whereas, charge-sheet is filed against the driver of the Alto Car and the Hospital records would also indicate the involvement of the Scorpio car in the alleged accident. But subsequently, PW-3 in his additional statement, recorded on 20-11-2010 has stated that the vehicle involved in the accident is Alto car bearing No.KA-03-MH-7435. Admittedly, the accident had taken place on 08-9-2010, whereas, the complaint has been lodged on 8-11-2010. There is no proper explanation for the delay in lodging the complaint. Further, the learned counsel submitted that the Tribunal rightly rejected the claim petition. Thus, he prays for dismissal of the appeal.
10. Having heard the learned counsels for the parties and on perusal of the lower court records, the only point which arises for consideration in the facts and circumstances of the case is as to whether the Tribunal is justified in dismissing the claim petition filed under Section 166 of the Motor Vehicles Act. Answer to the said point is in the affirmative for the following reasons.
11. The claimant was aged 18 years as on the date of alleged accident. According to the claimant, the alleged accident had taken place on 08-9-2010. It is stated that the claimant was in Hospital as inpatient for 23 days. Even though the accident had taken place on 08-9-2010, the complaint-Ex.P-1 was filed by PW-4-father of the claimant only on 08-11-2010 nearly two months after the accident. In Ex.P-1-complaint, the complainant has stated that while his son was coming back from the school in his bicycle, Scorpio car, which was driven in a rash and negligent manner dashed to his son’s bicycle. Due to which, his son sustained injuries. Hospital records i.e., MLC extract would also indicate that the claimant came with history of RTA hit by Scorpio car. Ex.P-11 is discharge summary of R.L. Jalappa Hospital & Research Centre, which reads as follows:
“HOP1: Patient attenders gives history of RTA, he was riding a bicycle & hit by a Scorpio car around 5:00 PM”
12. PW-1, the claimant himself in his evidence states that bicycle was hit by Alto car and he sustained injuries. PW-2, the Doctor states that the claimant has suffered proximal fracture upper one third of left femur and left si joint disruption. Further, the Doctor states that the claimant suffers 12% disability to the whole body and 36% disability to a particular limb. PW-3 is Manjunath who is said to be an eye-witness, at paragraph No.3 of the deposition states as follows:
“3. I submit that after few days of the accident when I was going in a bus for my work in a hurry, when my bus stopped in bus stop, the petitioner’s father Mr. Ramakrishnappa as a pedestrian from outside bus met me and asked for accident causing vehicle details. Then I checked my small note book and told the car bearing No.KA-03-MH-7435 as Alto car. At that point of time I was simultaneously talking on my mobile phone and talking about purchasing of a Scorpio Car and the said name of the Scorpio car was heard by the Petitioner’s father Mr. Ramakrishnappa and he mistook the vehicle name as Scorpio car and lodged police complaint.”
13. PW-3, interestingly states that while giving details of the accident, he was simultaneously talking on the mobile phone regarding purchasing of scorpio car, which cannot be believed at all. The father of the claimant was examined as PW-4, in his evidence he states at paragraph No.4 as follows:
“4. I submit that I am working as a farmer. The petitioner in this case is my only son. My wife is a mentally retarded person. After the accident I admitted my minor aged son to the hospital. As I did not have money for offering medical treatment to my son, I was wandering for money to pay to the Hospital. I was the only person to look-after my injured son and also take care of my family and my work. As the month of September-2010 was a season for cultivation, I concentrated mainly on my crops to eke my livelihood and concentrated about my family. Hence I could not give complaint immediately after the accident. After few days of the accident when I was enquiring near the accident spot for knowing details of accident causing vehicle, I was told by the public that One Mr. Manjunath, S/o. Rangappa, who eye witnessed the accident has written down the car number.”
With regard to the delay in lodging the complaint, PW-4 states that he was concentrating on cultivation since it is the month of September, to eke out his livelihood and his wife is mentally retarded person. But how he was prevented from lodging the complaint immediately on the occurrence of the accident or immediately after discharge of the claimant is not forthcoming from the evidence of PW-4 or from his complaint. He has not given any acceptable reason for delay in lodging the complaint. Looking to the evidence of PWs.3 & 4 and documents such as Ex.P1-complaint and Ex.P11-discharge summary, I am of the view that the Tribunal rightly dismissed the claim petition. The claimant is not definite with regard to the involvement of the vehicle in the accident. There is contradiction between the complaint-Ex.P1 and evidence of PW-1 and PW-4. It is initially stated that the accident had occurred involving scorpio car and subsequently it is changed to Alto car. There are no reasons to interfere with the judgment and award passed by the Tribunal.
Accordingly, the appeal stands dismissed.
Sd/- JUDGE SMJ