Susheelamma vs G.M. Bhootharaju

Mr. B. Manohar, J.—Appellants have filed this appeal challenging the legality and correctness of the judgment and award dated 04-07-2011 made in MVC No. 1632/2008 passed by the Principal Civil Judge (Sr.Dn.) and CJM, Tumkur (hereinafter referred to as ''the trial Court'' for short) dismissing the claim petition filed by them.

The appellants are the wife and children of the deceased Ramaiah @ Ramachandrappa. They filed a claim petition contending that on 6-7-2008, while the deceased Ramaiah @ Ramachandrappa was proceeding in his motorcycle bearing Registration No. KA-44/E-3657 on the left side of the Hunaseghatta road on Tiptur-Channrayapatna at about 9.15 p.m., a Tractor and Trailer bearing Registration No. KA-06/TA-437-438 driven by its driver in a rash and negligent dashed against the motorcycle and caused accident. Due to that, the deceased fell down and sustained grievous injuries all over the body. Immediately after the accident, he was shifted to the Government Hospital at Tiptur, thereafter he was shifted to NIMHANS. However, he succumbed to injuries on 07-07-2008 at about 5.30 a.m. In the claim petition, it was contended that the deceased was doing agricultural work and also mason work and earning Rs. 10,000/- per month. The family has lost the bread earner and hence sought for compensation of Rs. 20,00,000/-.

In response to the notice issued by the Trial Court, the respondents entered appearance and filed written statement. Respondent No. 1 denied the claim petition in to and contended that the offending vehicle was insured with the second respondent and insurance policy was in force as on the date of accident, hence sought for dismissal of the claim petition as against the first respondent.

The second respondent-insurance company in their written statement denied the involvement of insured vehicle and also contended that in order to claim the compensation from the insurance company the insured vehicle was falsely implicated. In the FIR or in the spot mahazar, the vehicle number has not been mentioned. In order to claim compensation the insured vehicle has been fixed. Further, driver of the offending vehicle was not holding valid and effective driving license as on the date of accident. Hence, the insurance company is not liable to compensate the claimant and sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the trial Court framed necessary issues.

The second claimant got examined himself as P.W. 1. one of the eye-witnesses was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P9. On behalf of the respondent-insurance company, the Assistant Manager got examined as R.W. 1 and got marked the documents as Ex.R1 to Ex.R4.

The Trial Court, after appreciating the oral and documentary evidence held that the claimants are the wife and children of deceased and in view of the road traffic accident occurred on 6-7-2008, deceased died during the course of treatment. With regard to liability is concerned, though the claimants contended that due to the negligence on the part of the driver of the Tractor and Trailer the accident occurred, but the insurance company disputed the same contending that the insured vehicle was not involved in the accident. While filing the complaint before the jurisdictional police, in the FIR which was placed before the trial Court the vehicle number, name and particulars of the vehicle involved in the accident has not been mentioned. Even in the spot mahazar also, the vehicle number has not been mentioned. In order to get compensation from the insurance company, the insured vehicle has been falsely implicated. Though P.W. 1 was examined, he was not the eye witness of the accident. P.W.2 was examined as eye-witness and he expressed ignorance with regard to the accident. In the MLC extract, the history of accident was shown as sustained injuries due to "fall and skid from the bike. The IMV report also disclose that there is no damage to the Tractor and Trailer. In view of that, the trial Court held that the claimants have failed to prove that the deceased died due to actionable negligence on the part of the driver of the Tractor and Trailer and dismissed the claim petition. Being aggrieved by the same, the claimants have filed this appeal.

Sri. Patel D Karegowda, learned counsel appearing for the appellants contended that the judgment and award passed by the trial Court is contrary to law. Necessary documents have been produced to show that the Tractor and Trailer has been involved in the accident. The owner of the Tractor and Trailer had not disputed the occurrence of the accident. The charge sheet filed against the driver has not been questioned. Hence, the judgment and award passed by the trial Court dismissing the claim petition is contrary to law.

On the other hand, Sri. L. Sreekant Rao, learned counsel appearing for insurance company argued in support of the judgment and award passed by the trial Court and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties.

The case of the claimants is that while the deceased was proceeding in the motorcycle on 6-7-2008, the Tractor and Trailer dashed against the deceased, due to which he fell down and succumbed to injuries. The insurance company disputed the same contending that neither in the FIR which was produced as Ex. P1 nor spot mahazar which was marked as Ex.P4, there is mentioning of the vehicle number and nature of the vehicle involved in the accident. The seizure of the vehicle was made on 17-8-2008, the IMV report dated 18-8-2008 clearly disclose that there is ''no visible damages are found on the vehicle''. If the eye-witness who was examined as P.W.2 has seen the occurrence of the accident, nothing prevented him to file a complaint mentioning the number and nature of the vehicle. On the other hand, immediately after the accident, the injured was shifted to the hospital and in the MLC extract in the column of cause of accident, it was shown as skid and fall on 6-7-2008 at 3.30 p.m. The MLC extract discloses the said fact. Further in the Post Mortem report, reason for the death was mentioned as skid and fall from bike. These documents were not produced by the claimants before the trial Court, however, the insurance company produced the said documents during the course of evidence. If the Tractor and Trader had dashed against the motorcycle of the deceased, in the hospital, they would have mentioned that the Tractor and Trailer dashed against the motorcycle, even though they were not aware of the vehicle number. Before the Doctor, it was clearly mentioned that the accident is due to skid and fall from motorcycle. In order to claim compensation from the insurance company, the insured vehicle has been fixed. The vehicle involved was not damaged and seizure of the vehicle was made after 38 days of the accident. No cogent document has been produced to show that the offending Tractor and Trailer was involved in the accident. The MLC extract produced as Ex.R2 clearly discloses that the death occurred due to skid and fall from the motorcycle. Hence, it is not open to the claimants to contend that the deceased died due to the hit by the Tractor and Trailer. The trial Court after considering the oral and documentary evidence let in by the parties, dismissed the claim petition. The appellants have not made out a case to interfere with the said judgment and award passed by the trial Court. Accordingly, the appeal is dismissed.