IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous first Appeal No. 8268 OF 2010 Between:
SRI T C NAGARAJU SINCE DEAD REPRESENTED BY HIS LRS.
1. SMT PRAMILA, WIFE OF LATE T.C.NAGARAJU, AGED ABOUT 43 YEARS 2. SMT. PRETTHI DAUGHTER OF LATE T.C.NAGARAJU WIFE OF SRI PREM KUMAR AGED ABOUT 24 YEARS.
3. SMT PUSHPALATHA DAUGHTER OF LATE T.C.NAGARAJU AGED ABOUT 21 YEARS.
4. MASTER PAVAN SON OF LATE T.C.NAGARAJU AGED ABOUT 19 YEARS.
ALL ARE RESIDENT OF THUBINAKRE HIRISAVE VILLAGE, CHANNARAYAPATNA HASSAN DISTRICT – 573 124.
... APPELLANTS (BY SRI. H. R. MANJUNATHA., ADVOCATE) And:
1. SRI B. L. SWAMY AGED 40 YEARS SON OF LAKKEGOWDA RESIDENT OF BILLENAHALLIVILLAGE, SANTHE BACHAHALLI HOBLI, K. R. PET TALUK.
2. SRI SWAMYGOWDA AGED 27 YEARS SON OF VENKATEGOWDA BELAGUNDA VILLAGE, BELAVADI POST, PIRIYAPATNA TALUK, MYSORE DISTRICT.
3. THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE, S V NILAYA, B M ROAD,HASSAN 523201 PRESENTLY: C. NANJAPPA COMPLEX, NEHRU CIRCLE, HASSAN.
... RESPONDENTS (BY SRI. A.N. KRISHNA SWAMY., ADVOCATE FOR R3; SRI. MUNIRAJU S.D., ADVOCATE FOR R1; NOTICE TO R2 SERVED & UNREPRESENTED) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.02.2010 PASSED IN MVC NO. 80/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, AND MACT, CHANNARAYAPATNA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the injured - claimant in MVC No.80/2007 on the file of the Fast Track Court and MACT, Channarayapatna (for short, ‘the Tribunal’) calling in question the judgment and award dated 25.02.2010, whereby the Tribunal has rejected the claim petition filed under Section 166 of the Motor Vehicles Act, 1988. The appellant – claimant has died during the pendency of the appeal and thereafter, his legal representatives are permitted to come on record to prosecute the appeal. The appeal is taken up for final disposal with the consent of the learned counsel for the parties.
2. The deceased claimant filed the claim petition in MVC No.80/2007 stating that he was severely injured in a road accident on 17.9.2006 at about 6.30 p.m. when he was hit by the motorcycle bearing registration No. KA-09-V- 9716. At the time of accident he was walking on B.M.Road towards Hirisave and the driver of motorcycle who was also going towards Hirisave dashed against him from behind. He suffered injuries in the accident. He was initially taken to a hospital at Hirisave, and the Doctor advised his attendants to take him to a bigger hospital and thereafter, he was taken to KIMS Hospital, Bengaluru on 18.9.2006. He was unconscious for a substantial period of time after the accident. His nephew, Sri T.C.Ashok lodged the first information with the jurisdictional police about the accident, and after investigation the jurisdictional police filed charge sheet against the respondent No.1, the rider of the motorcycle, who pleaded guilty and paid the fine as per the sentence imposed.
3. The respondents viz., owner of the motorcycle and the Insurer thereof filed their respective objection statements, but they did not lead any evidence. The Insurer while denying its liability asserted that the deceased claimant was attempting to cross the road while talking to his nephew and he came in the path of the motorcycle and sustained injury. Therefore, the deceased claimant was not entitled for compensation.
4. The deceased claimant examined himself as PW.1 and examined Dr. Jayaram as PW.2 to substantiate his case that he was injured in a road traffic accident on 17.9.2006 involving the aforesaid motorcycle. The deceased claimant has relied upon Exs.P.1 to P.21 which include the police records, medical records, wound certificate and case sheets from the KIMS Hospital. The Tribunal, on appreciation of the ocular and documentary evidence on record, has concluded that the deceased claimant is not able to establish the accident involving the motorcycle because the evidence in this regard is not sufficient.
5. The learned counsel for the appellants – legal heirs of the deceased claimant argued that the Tribunal has erred in concluding that the evidence on record is not sufficient to establish that the deceased claimant was injured in a road traffic accident involving the motorcycle. The learned counsel contended that even the Insurer of the motorcycle did not contest the claim petition on the ground that the motorcycle was not involved in the accident and its defence was that the deceased himself was responsible for the accident involving the motorcycle and therefore, the Tribunal should have considered the evidence on record in the light of this defence.
6. The learned counsel further argued that neither the delay in lodging the complaint nor the different versions about the accident referred to by the Tribunal would be material inasmuch as the rider/owner of the motorcycle has pleaded guilty of negligence in causing the accident resulting in injuries to the deceased claimant. The Tribunal ought to have considered this evidence in the light of the Insurer’s defence. The fact that the deceased claimant was injured in a road accident involving the motorcycle is established on the scale of preponderance of probabilities and as such, the tribunal has in erred in concluding that the evidence is not sufficient.
7. The learned counsel for the insurer - the respondent No.3 while arguing in support of the finding by the Tribunal as regards sufficiency of evidence to conclude that the deceased claimant was injured in a road accident involving the motorcycle, submitted that the appeal, on the demise of the claimant, cannot be sustained in view of the law reiterated by a Full Bench of this Court in Uttam Kumar vs. Madhav and Another reported in ILR 2002 KAR 1864. The learned counsel for the Insurer emphasized that cause of action for personal injuries being founded on tort, cannot, on the death of a person, survive for prosecution as per the provisions of Section 306 of the Indian Succession Act inasmuch as it declared that the cause of action in favour of a person for personal injuries, does not survive against the executor or the legal representatives on the person’s death. Therefore, the Full bench of this Court in the aforesaid decision has held that the claim by a person for compensation for personal injuries, whether it is pending before the claims tribunal or in the first appeal, would not survive on the claimant’s demise to his legal representatives. This proposition would squarely apply to the present appeal.
8. In rebuttal, the learned counsel for the appellants argued that the Motor Vehicles Act, 1988 is amended by the Motor Vehicles (Amendment) Act, 2019 and by this Amendment Act, inclusion of sub-clause (5) to Section 166 of the Principal Act is contemplated. This new clause provides in express terms that the right of a person to claim compensation for injury in an accident would, upon the death of the person injured, survive to his legal representatives irrespective of whether the cause of death is relatable to or had any nexus to the injury or not. The appellants would be entitled for the benefit of the amendment.
9. The full Bench of this Court in Uttam Kumar vs.
Madhav and Another supra reiterating the exposition by an earlier Full Bench in Kannamma vs. Deputy General Manager reported in ILR 1990 KAR 4300 has inter alia held as follows:
“(iii) A claim by a person for compensation for personal injuries, be it pending before the Claims Tribunal, be it pending in the first Appellate Court or be it pending in the second appellate Court, does not survive on such person’s death not caused as a consequence of personal injuries, to his legal representatives.
(iv) A claim of a person for compensation for personal injuries if has resulted in award of the Claims Tribunal or decree of the Appellate Court, survives to his legal representatives on his death, even if such death is not the consequence of personal injuries sustained by him and hence, if such award or decree is disputed in the first Appellate Court or the second Appellate Court, the same could be resisted by the legal representatives of the claimant.”
10. The Full bench decision holds the field, and the amendment to the Motor Vehicles Act, 1988, for inclusion of Sub clause (5) of Section 166 relied upon by the learned counsel for the appellants is not yet notified as required under Section 1(2) of the Motor Vehicles (Amendment) Act, 2019. Therefore, reliance on the amendment would be of no avail to the appellants. Even if the amendment Act were to be notified, the question whether that would be available to the appellants would be another issue that would arise. However, for the purpose of the present case, it would suffice to conclude that the appellants cannot sustain the claim petition in view of the decision of the Full Bench in Uttam Kumar vs. Madhav and Another.
11. Even otherwise, the tribunal has arrived at its conclusion as regards involvement of the motorcycle based on the following circumstances:
a) The information about the accident is lodged by the deceased claimant’s nephew, Sri T.C.Ashok and his version as to how the accident took place is materially different from the deceased claimant’s statement about the manner in which the accident took place. The deceased claimant has stated that when he was walking along with his nephew, Sri T.C.Ashok towards Hirisave, the motorcycle dashed against him coming from behind, while the complainant – his nephew has stated that he and another Chikka Ramegowda were walking towards Kirisave and the injured claimant was coming from the opposite side when he was hit by a motorcycle. The deceased claimant has not chosen to examine the complainant despite the fact that the complainant is his nephew and he could have examined him. The varying versions create doubt about the credibility of the involvement of the motorcycle.
b) The information about the accident with the jurisdictional police is lodged four days after the accident, The explanation that the claimant was unconscious for a period of 18 days after the accident, cannot be accepted because according to the contents of the medical records recorded immediately after the accident, he was unconscious only for about 10 minutes.
c) The deceased claimant was taken to the hospital by his brother Sri Basavaraj, who has stated before authorities that the deceased claimant was injured because of the accident brought about by auto rickshaw.
The Tribunal has weighed these circumstances as against the claimant’s testimony about the manner of accident and the police records. The Tribunal has concluded that in light of the circumstances discussed, the charge sheet against the rider of the motorcycle and he pleading guilty cannot be accepted as clinching evidence. This Court is of the opinion that the Tribunal has rightly appreciated the evidence on record and such appreciation is neither perverse nor irregular.
For the foregoing, the appeal is dismissed.
Sd/- Judge SA Ct:sr