IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1614 OF 2014 (MV) BETWEEN:
1. RAMU B S/O BOREGOWDA AGED ABOUT 35 YEARS 2. ADITHYA S/O RAMU B AGED ABOUT 12 YEARS 3. ARPITHA D/O RAMU B AGED ABOUT 10 YEARS PRESENTLY R/AT NO.42/A, NEAR SRIKRISHNA LORRY GARAGE DODDAKALLASANDRA BENGALURU – 560 062 PREVIOUS R/AT NO.302, VAJRAHALLI BANGALORE SOUTH BENGALURU PETITIONER NOS.2 AND 3 ARE MINORS HENCE REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN PETITIONER NO.1 ... APPELLANTS (BY SRI.PRAKASH M.H., ADVOCATE) AND:
1. THE NEW INDIA ASSURANCE CO. LTD., NO.9, II FLOOR, MAHALAXMI CHAMBERS M.G. ROAD BENGALURU – 560 001 2. GANESH Y. S/O YALLAPPA GOLLARA BEEDI KOTE KANAKAPURA TOWN RAMANAGARA DISTRICT – 562 117 RC OWNER OF TATA SUMO BEARING REGISTRATION NO.KA-02-N-1300 ... RESPONDENTS (BY SRI. K. SURYANARAYANA RAO, ADVOCATE FOR R1; R2 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 30.12.2013 PASSED IN MVC NO.5769/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, METROPOLITAN AREA, BENGALURU (SCCH.NO.15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHACEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and award dated 30.12.2013 passed in MVC No.5769/2012 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru, by which the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 was dismissed on the ground that the claimants have failed to establish the involvement of Tata Sumo in the accident.
2. The claimants are husband and children of deceased-Sudha. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of the accidental death of Sudha in a road traffic accident. It is stated that on 21.08.2012, when the deceased was proceeding as a pillion rider along with her husband in a motor cycle bearing registration No.KA-51/4684, Tata Sumo bearing registration No.KA-02-N-1300 came in a high speed and in a rash and negligent manner from the opposite side and dashed against the motor cycle. Due to which, the deceased fell down and sustained grievous injuries. Immediately, the deceased was shifted to Government Hospital, Kanakapura. Thereafter, she was shifted to KIMS Hospital, where she was inpatient from 21.08.2012 to 02.09.2012. It is stated that on 02.09.2012, the deceased succumbed to the injuries.
3. On issuance of notice, both respondent Nos.1 and 2-owner of the offending vehicle and Insurer respectively, had appeared before the Tribunal and filed their objections.
4. Respondent No.1-Owner of the offending vehicle, in his written statement has stated that the offending vehicle was insured with the respondent No.2-Insurer and denied the other averments made in the claim petition.
5. Respondent No.2-Insurer, in its objection statement denied the occurrence of the accident in the manner narrated in the claim petition. But, it is stated that respondent No.2 reliably learnt and submitted that the alleged accident was not due to the rash and negligent driving of the driver of the Tata Sumo bearing registration No.KA-02-N-1300 but, on the negligent driving of the rider of the motor cycle, in which the deceased was riding as a pillion rider. It is specifically contended that, there is no negligence on the part of the rider of the Tata Sumo but, the accident had taken place due to the negligence of the rider of the motor bike. It is also contended that the quantum of compensation claimed by the claimants are exorbitant and excessive, apart from contending that the driver of the offending vehicle had no valid and effective Driving Licence as on the date of the accident.
6. Claimant No.1 examined himself as PW-1 apart from marking Exs.P-1 to P-15. The respondent- Insurer examined its officer as RW-1 and marked documents Exs.R-1 to R-5. The Investigating Officer was examined as CW-1. The Tribunal based on the materials available before it, was of the opinion that the claimants have failed to establish the involvement of the Tata Sumo in question in the accident and rejected the claim petition filed under Section 166 of the Motor Vehicles Act, 1988. The claimants aggrieved by the dismissal of the claim petition, are before this Court in this appeal.
7. Heard the learned counsel for the claimants and learned counsel for the respondent-Insurer.
8. Learned counsel for the appellant-claimants would submit that the Tribunal has committed an error in dismissing the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Sudha, wife of claimant No.1 and mother of claimant Nos.2 and 3.
9. It is his submission that immediately after the accident, claimant No.1-husband of the deceased lodged complaint before the Police and FIR was registered as per Ex.P1. It is his submission that in the complaint, it is specifically stated that a Tata Sumo vehicle came in a rash and negligent manner and dashed against the motor cycle bearing registration No.KA-51/4684. Subsequently, in the investigation, the vehicle number was found out and charge sheet was also filed against the driver of the Tata Sumo.
10. Further, he submits that even though the Insurer had not taken the plea of involvement or otherwise of the Tata Sumo, the Tribunal proceeded on the basis that respondent No.2 has raised dispute with regard to the very involvement of the Tata Sumo in question in the accident, which is wholly erroneous and finding of the Tribunal that the vehicle in question is not involved in the accident is perverse and oppose to the materials on record.
11. Further, learned counsel invites the attention of this Court to the evidence of CW-1, apart from pointing out Exs.P-1 and P-4, statement recorded by the Investigating Officer. Thus, he submits that on perusal of the materials available on record, it is clear that the claimants have proved the accident. But, the Tribunal has erroneously dismissed the claim petition.
12. Per contra, learned counsel for the respondent-Insurer would submit that as the claimants have failed to prove the involvement of Tata Sumo, the Tribunal has rightly dismissed the claim petition filed under Section 166 of the Motor Vehicles Act, 1988. It is his submission that claimant No.1, who has filed the compliant has failed to indicate the number of Tata Sumo in his complaint dated 21.08.2012. The registration number of the vehicle was found out subsequent to the death of the deceased on 02.09.2012 and how the registration number of Tata Sumo vehicle was found out, is not forthcoming from the evidence on record. Therefore, he prays for dismissal of the appeal.
13. Having heard learned counsel for the parties and on going through the materials available on record including Lower Court Records, the only point which falls for consideration is as to “whether the Tribunal is justified in dismissing the claim petition filed under Section 166 of the Motor Vehicles Act, 1988”. Answer to the above point is in the negative for the following reasons.
14. The husband and children of the deceased- Sudha are the claimants. The claim petition was filed claiming compensation for the death of Sudha in a road traffic accident involving the motor cycle bearing No.KA-51/4684 and Tata Sumo bearing registration No.KA-02-N-1300, which occurred on 21.08.2012. Claimant No.1, the husband of the deceased, was riding the motor bike along with the deceased at the time of the accident. On the date of the accident itself, claimant No.1, husband of the deceased lodged the complaint before the Police as per Ex.P-1. Ex.P-1- complaint reads as under:-
“¸Áé«Ä £Á£ÀÄ ªÉÄîÌAqÀ «¼Á¸ÀzÀ°è ªÁ¸À«zÀÄÝ ¢£ÁAPÀ 21-8-2012 gÀAzÀÄ £ÀªÀÄä HjUÉ ºÉÆÃV ªÁ¥À¸ï ¨ÉAUÀ¼ÀÆjUÉ ºÉÆÃUÀ®Ä £À£Àß ¨Á§ÄÛ ªÉÆÃlgï ¸ÉÊPÀ¯ï KA-51-E-4684 gÀ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ºÉAqÀw E§âgÀÄ PÀ£ÀPÀ¥ÀÄgÀ ¨ÉAUÀ¼ÀÆgÀÄ gÀ¸ÉÛAiÀÄ°è ªÀÄzsÁå£À 12 UÀAmÉAiÀÄ°è bÀvÀæ UÁæªÀÄzÀ ºÀwÛgÀ ºÉÆÃUÀÄwÛgÀĪÁUÀ ¨ÉAUÀ¼ÀÆgÀÄ PÀqɬÄAzÀ – PÀ£ÀPÀ¥ÀÄgÀPÉÌ §gÀÄwÛzÀ mÁmÁ ¸ÀĪÀÄ ZÁ®PÀ ªÉÃUÀªÁV ¤®ðPÀëvɬÄAzÀ ZÁ®£É ªÀiÁrPÉÆAqÀÄ §gÀÄwÛzÀªÀ£ÀÄ ªÀÄÄAzÉ ºÉÆÃUÀÄwÛzÀ §¸ïì£ÀÄß NªÀgï mÉÃPï ªÀiÁr gÀ¸ÉÛAiÀÄ §®¨sÁUÀPÉÌ §AzÀÄ £À£Àß ªÉÆÃlgï ¸ÉÊPÀ¯ïUÉ rQÌ ºÉÆqɹzÀ ¥ÀjuÁªÀÄ ªÉÆÃlgï ¸ÉÊPÀ¯ï ¸ÀªÉÄÃvÀ ¸Àé®à zÀÆgÀ GfÓPÉÆAqÀÄ ºÉÆÃV £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ºÉAqÀw ¸ÀÄzsÀ PɼÀPÉÌ ©¢ÝzÀjAzÀ JqÀPÁ®Ä §®UÉÊUÉ gÀPÀÛ UÁAiÀĪÁVgÀÄvÉÛ. £À£Àß ºÉAqÀwAiÀÄ 2 PÁ®ÄUÀ¼À ªÀÄAr PÉüÀUÉ gÀPÀÛªÁVgÀÄvÉÛ. £ÀªÀÄUÉ C¥ÀWÁvÀ ªÀiÁr mÁmÁ ¸ÀĪÀÄ ¸ÀܼÀzÀ°è ¤°è¸ÀzÉ ºÉÆgÀmÉ ºÉÆÃzÀ£ÀÄ.”
15. A reading of the above complaint would indicate that while claimant No.1 along with the deceased was proceeding in his motor cycle bearing registration No.KA-51/4684, Tata Sumo vehicle came in a rash and negligent manner and dashed against their motor bike. Due to which, they fell down and the deceased suffered severe injuries. It is further stated in the complaint that the Tata Sumo vehicle without stopping went away from the accident scene. It is pertinent to note that complainant specifically mentions Tata Sumo vehicle as the offending vehicle. The respondent-Insurer on appearance had filed its objection statement to the claim petition. At paragraph No.5 of the objection statement, it stated as follows:
“This Respondent further denies that the alleged accident occurred in the manner narrated in the Petition. This Respondent reliably learns and submits that the alleged accident was not due to the rash and negligent driving by the driver of the Tata Sumo Vehicle bearing Registration No.KA-02-N-1300, but on the other hand the rider of the Motor cycle [the petitioner No.1 herein] in which the deceased was riding pillion was riding the Motor cycle in a rash and negligent manner, has lost control over the vehicle and has hit the oncoming Tata Sumo, resulting in the accident. Further it is reliably learnt that the rider of the Motor cycle [the petitioner No.1 herein] was not holding a valid Driving License to drive the vehicle. The Petitioners have filed the above Petition on false and frivolous grounds to support their untenable claim.”
16. The Insurer, nowhere in its objection statement has denied the involvement of Tata Sumo vehicle but, on the other hand, it denied that the accident occurred in the manner narrated in the petition. It has specifically contended that the accident occurred due to the rash and negligent driving of the rider of the motor bike and not due to the negligent driving of the driver of the Tata Sumo. But, the Tribunal erroneously proceeded on the basis that respondent No.2-Insurer has raised dispute with regard to the very involvement of the Tata Sumo in question. The Tribunal proceeded on a wrong footing when the Insurer had not taken a plea of non involvement of Tata Sumo vehicle in question. The approach of the Tribunal itself is erroneous.
17. PW-1 in his evidence, who is the eye witness to the accident and was rider of the motor bike states that when he along with his wife was proceeding in a motor bike bearing registration No.KA-51/4684 on Bengaluru-Kanakapura Road, driver of the Tata Sumo bearing registration No.KA-02-N-1300 came from the opposite side overtaking a bus in a rash and negligent manner, dashed against the motor cycle causing accident. Due to which, the deceased suffered severe injuries and succumbed to the injuries. The Insurer cross- examined PW-1, but nothing was elicited in support of the plea of the Insurer.
18. CW-1 is the Investigating Officer, who stated that on his further investigation, he had filed charge sheet before the jurisdictional Magistrate and the vehicle involved in the crime was Tata Sumo bearing registration No.KA-02-N-1300 and the driver of the said vehicle was one Mahalingaiah and was having a valid Driving Licence as on the date of the accident. In the cross-examination, he has stated that two eye witnesses by name, Shivaraju and Shivakumar, informed about the registration number of the vehicle. Further, he also states that one Manju and one Mangalamma stated about the registration number of the vehicle and he states that he has recorded the statement of those witnesses. The statement of Shivaraju and Shivakumar is placed on record as Ex.P-4. A perusal of the statement of Shivaraju and Shivakumar would indicate that they were proceeding on cycle and at that time, Tata Sumo bearing registration No.KA-02-N-1300 came in a rash and negligent manner overtaking a bus and dashed against the motor cycle. They further stated that Tata Sumo without stopping went away from the accident scene.
19. From the evidence of Claimant No.1 -PW-1, Investigating officer-CW-1 and statement of Shivaraju and Shivakumar - Ex.P-4, the eye witnesses to the accident, it is clear that the accident occurred due to the rash and negligent driving of the driver of the Tata Sumo vehicle bearing registration No.KA-02-N-1300. The finding of the Tribunal that the claimants have failed to establish the involvement of the Tata Sumo in question, is perverse and is liable to be set aside.
20. Accordingly, the appeal is allowed. The judgment and award dated 30.12.2013 in MVC No.5769/2012 on the file of MACT, Court of Small Causes, Bengaluru is set aside and the matter is remanded to the Tribunal to consider the claim petition on merits.
It is for the claimants to prove the nexus between the accidental injuries and death of Sudha and Tribunal to assess the compensation in accordance with law.
Sd/- JUDGE Mds/-