Devamma and Others vs K.B. Balakrishna and Others

N.K. Patil, J.

Though this matter is posted in the Orders list, it is taken up for final disposal with the consent of the learned counsel appearing for both the parties.

This appeal is by the claimants being aggrieved by the impugned judgment and award dated 09.09.2010 passed in MVC No. 740/2009 on the file of the Presiding Officer, FTC-III, MACT, Mysore dismissing the claim petition for compensation.

In brief, the facts of the case are:

The appellant Nos. 1 and 2 are the parents of the deceased late Sri. Ramesh and they have filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation against the respondents-driver, owner and Insurer contending that the deceased was returning to his house after finishing his work on 26.04.2009 at about 1.30 a.m. and while he was crossing the Hunsur Double Road i.e. from South to North near Mary Bakery at Hinkal Main Road, at that time, a car bearing Registration No. KA. 13-M-1010 driven by the driver of the car in a rash and negligent manner and dashed against the deceased. Due to this impact, deceased fell down and died at the spot. He was shifted to J.S.S. Medical College, Mysore to conduct the post mortem and after post mortem, the dead body was taken by the appellants for funeral ceremony. The appellants have spent more than Rs. 25,000/- for funeral and other expenses. The parents are depending upon the income of the deceased. He was working as a Loader and earning Rs. 250/- to Rs. 300/- per day. They have lost the love and affection of their son and earning member of the family.

Respondent Nos. 1 and 3 appeared before the court along with their respective counsel and resisted by way of written statement and in spite of service of notice, the 2nd respondent remained absent. Hence he is placed ex parte .

The 1st respondent has denied the averments made in column 1 to 6 and 8 of the petition and further denied the averments made in column 22 of the petition regarding the manner in which the accident said to have occurred as alleged by the appellants and claimed strict proof of the same and further denied that the deceased was not doing any working as such he was not getting any income and further contended that the 1st respondent has sold the vehicle to the 2nd respondent on 02.04.2009. The 2nd respondent has issued delivery note to the 1st respondent as such the 1st respondent is not liable to pay the compensation.

In the statement of objection, the 3rd respondent has admitted that the car bearing registration No. KA. 13-M-1010 was duly insured with 3rd respondent by the 1st respondent and the policy issued was subject to terms and conditions and they are binding on both the insured and insurer. The 3rd respondent pleaded ignorance of the relationship of the appellants with the deceased and denied the age, occupation and income of the deceased. Further denied the averments made in Column Nos. 3, 4, 6, 8, 8(a), 9, 11, 12, 22 and 23 of the petition regarding the nature of the injury sustained by the deceased and claimed strict proof of the same. Further they contended that the petition is bad for non-joinder of necessary parties since the driver of the said car has not been made as a party to the proceedings. Further contended that the compensation claimed by the appellants is exorbitant one. On all these grounds, 3rd respondent prayed for dismissal of the petition as devoid of merits.

On the basis of the pleadings available on record, the following issues are framed:

"1. Whether the petitioner proves that one one Ramesh, son of Siddappa met with a Road Traffic Accident on 26.04.2009 at about 1.30 a.m. on Hunsur Double Road, near Maryn Bakery at Hinkal Main Road, and died at the spot, due to the rash and negligent driving by the driver of Car bearing Reg. No. KA 13 M-1010?

Whether the petitioner proves that, they are entitled for compensation? If so, to what amount and from whom?

What Order?

After due appreciation of the oral, documentary evidence and other material on record, the record, the Tribunal held that the claimants have proved the death of the deceased Ramesh in the accident but failed to prove the involvement of the vehicle in the accident and therefore issue No. 1 is answered in negative and being aggrieved by the impugned judgment and Award passed by the Tribunal, the appellants have presented this appeal.

Learned counsel Sri. H.P. Veerabhadraswamy, at the outset submitted that due to lack of legal knowledge, they could not examine Sri. Shivakumar who has chased the vehicle involved in the accident and also they have not informed the nearest police station and they could not examine him. Further he submitted that one eye witness Sri. B. Nagaraju of the same Village also was not examined. If one more opportunity is given to examine Sri. Shivakumar, they are in a position to establish that the vehicle in question is involved in the accident and if they prove the same, they are entitled for compensation from the owner and the Insurer of the vehicle involved in the accident. Therefore he submitted that one more opportunity may be given to examine Sri. Shivakumar and Sri. B. Nagaraju and the impugned Judgment and Award passed by the Tribunal may be set-aside and the matter may be remitted back for fresh consideration to enable them to examine Sri. Shivakumar and Sri. B. Nagaraju and prove that the car bearing registration No. KA. 10 M-1010 is involved in the accident. Further he submitted that even they have failed to implead the driver of the car and therefore if an opportunity is given to implead the driver of the car, they can prove that the above said car is involved in the accident. Therefore he submitted that the impugned Judgment and Award passed by the Tribunal is liable to be remitted back to the Tribunal for fresh consideration.

As against this, the learned counsel appearing for respondent Nos. 1 and 3 inter alia contended that the impugned Judgment and Award passed by the Tribunal is after appreciation of all the documentary evidence and other relevant material on record. After critical evaluation of all the documentary evidence available on file, the Tribunal has recorded a specific finding at Paras 10, 11, 13 and 14 of the Judgment holding that, in spite of giving opportunity, they have failed to mention the vehicle number involved in the accident. Therefore, the impugned judgment and award passed by the Tribunal is well founded and well reasoned. Therefore, interference by this court is uncalled.

After careful consideration of the submission made by the learned counsel appearing for the appellants and counsel appearing for the respondents 1 and 3 and after perusal of the impugned Judgment and Award, it is not in dispute that on account of the injuries sustained in a road traffic accident, the deceased died. But they have failed to prove the involvement of the vehicle in question by producing credible documentary evidence. However, the evidence of RWs-1 and 2 coupled with Exs. P-1 to P-10 and Exs. R-1 to R-5 has been considered in detail and discussed elaborately in paras 10 to 13 of the judgment and further specifically observed that Sri. Shivakumar is the proper person to say regarding the accident, involvement of the car bearing registration No. KA 13 M-1010 in the accident. As could be seen from his statement, he chased the vehicle up to Aishwarya Petrol Bunk to catch the vehicle involved in the accident. If that is so and if really the said Shivakumar had chased the vehicle, then he should have informed the same to the nearest Police Station. The said Shivakumar has not informed the same till 17.06.2009. The conduct of Shivakumar would raise a doubt as to whether he had seen the vehicle involved in the accident at all. If that Shivakumar had seen the accident and chased the vehicle, he would have certainly informed the same to the nearest Police Station on the date of accident itself. On perusal of the charge sheet, it reveals that one Sri. B. Nagaraju, son of Bettanaika, resident of Hinkal Village is cited as an eye witness to the incident. Ex. P-3 is the spot mahazar wherein it is mentioned that place of occurrence is shown by the said Nagaraju. As per Ex. P-8, nobody was present at the time of the accident. The FIR was registered on the information furnished by the Head constable 52 of V.V. Puram Police Station. It is mentioned in the Ex. P-8 that the deceased was not identified by anybody. The eyewitness Nagaraju and deceased both are residents of the same Village. In the circumstances, the eyewitness Nagaraju could have identified the deceased at the time of the spot Panchanama. As per Ex. P-9 when Head Constable 52 went to the place of accident, nobody was present. But in the Police records, it is mentioned that one Nagaraju was present and he had seen the place of accident and he is the eye witness to the accident. The contents of the police records are contradictory to each other. The police records do not inspire confidence regarding the involvement of the car bearing registration No. KA 13 M-1010 in the accident. No doubt the deceased died due to the head injury sustained in a road traffic accident as mentioned in the post mortem report. Admittedly, the parents of the deceased were not present at the time of the accident. The police records also reveal that nobody was present at the time of the accident. Such being the position, the appellants should have examined eyewitnesses and Investigating Officer who conducted investigation in this case. In the absence of convincing evidence is not possible to hold that the accident occurred due to rash and negligent driving of the vehicle bearing registration No. KA 13 M-1010 by its driver. Against the said evidence adduced by the appellants, the 3rd respondent Insurance Company has examined its official as RW-1 and also adduced Ex. R-2. The Insurance Company has taken the stand that the involvement of the vehicle in the accident is not proved and merely on the basis of oral evidence, liability cannot be saddled on it and that the appellants have not made any efforts in spite of affording sufficient opportunity to prove the involvement of the vehicle in the accident and also the rash and negligent driving by the driver. In the absence of convincing and cogent evidence, it is not possible to hold that the car bearing reg. No. KA 13 M-1010 was involved in the accident which was driven by its driver. Therefore, the Tribunal observed that the appellants have proved the death of Ramesh in the accident but failed to prove the involvement of the above mentioned vehicle in the accident. The said reasoning given by the Tribunal is well founded and well reasoned and interference is uncalled for.

Having regard to the facts and circumstances of the case, the appeal filed by the appellants is dismissed as devoid of merits.