Chandrakala, W/O Late K.Rajappa @ ... vs M/S Sahara Travels And Anr
2021 Latest Caselaw 2436 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 28TH DAY OF JUNE 2021

                        PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                           AND
        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

   MISCELLANEOUS FIRST APPEAL NO.200416/2017

Between:

1. Chandrakala
W/o. Late K. Rajappa @ Raju
Aged about 38 years
Occ: Household

2. Bhagyashree
D/o. Late K. Rajappa @ Raju
Aged about 12 years
Occ: Student

3. Hanumanthappa
S/o. Zhareppa
Aged about 65 years
Occ: Nil

4. Zharemma
W/o Hanumanthappa
Aged about 63 years
Occ: NIL.

All are R/o Village Mangalgi
Taluq Humnabad, District: Bidar,
Now at Sainagar Bidar 585 401.
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Appellant No.2 Being the minor
U/G Of her Natural Mother,
Appellant No1 Chandrakala.                 ....Appellants.

(By Sri Ravi B Patil, Advocate)


AND:

1. M/s. Sahara Travels
Rep. By M.S. Kaneeza Fatima
W/o. Md. Mustaq Ahmed
H.No.11-1-293/4/A Agapura Nampally
Hyderabad (AP)
(Owner of the Vehicle Bearing
Reg. No.Ap-13/Y 0952
Volvo India Limited
Sahara Travels).

2. The Branch Manager
New India Assurance Co.Ltd.,
Hydernagar Micro Office
20-60/103, Flat No.103
Mathrushri Homes
Beside Bommanillu Restaurant
Hydernagar Miyapur X Road
Hyderabad - 500 049
Through its Branch Office
Sindole Complex
Railway Station Road,
Bidar - 585 401.                            ... Respondents

(Sri. Mallanna Reddy, Advocate for R-2,
      R-1 Served)

      This Miscellaneous First Appeal is filed under Section
173(1) of M.V Act praying to call for the records in MVC
No.676/2013 on the file of the Court of Senior Civil Judge
and MACT at Humnabad.
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     This appeal coming on for hearing           this   day,
S.G.Pandit, J., delivered the following:

                       JUDGMENT

The claimants are in appeal under Section 173(1)

of the Motor Vehicles Act, 1988, (Hereinafter referred to

as 'the Act' for short) aggrieved by dismissal of the claim

petition under judgment and award dated 22.06.2016 in

MVC No.676/2013 on the file of Senior Civil Judge and

MACT, Humnabad.

2. Claimants filed claim petition under Section 166 of

the Act claiming compensation for the accidental death

of one Sri Rajappa in a motor vehicle accident that took

place on 19.08.2013 in the early morning at 2.00 a.m.

involving Volvo Bus of Sahara Travels bearing Reg.

No.AP-13/Y-0952. Claimants are wife, daughter and

parents of the deceased. It is stated that the deceased

was aged 40 years and earning a sum of Rs.9,000/- per

month by doing Tailoring work. It is further stated by

the claimants that accident took place due to rash and

negligent driving by the driver of the Volvo bus, which

was insured with the 2nd respondent-Insurance

Company.

3. On service of summons respondent No.1 remained

absent and was placed ex-parte. Respondent No.2 -

Insurance Company appeared and filed statement

denying the claim petition averments. Further the

insurer denied the accident and accidental death of

deceased Rajappa. It is specifically contended that no

accident had taken place involving the Volvo Bus in

question. They also denied the initial treatment taken

by the deceased at General Hospital, Zaheerabad and

further treatment at General Hospital, Bidar. The

insurer also contended that the driver of the bus was

not having valid and effective driving licence as on the

date of accident.

4. The claimant No.1 examined herself as PW.1 and

marked documents Exhibits P1 to P10 in support of

their case. No evidence was led on behalf of the 2nd

respondent-Insurance Company.

5. The Tribunal framed four issues and the first

issue was as to 'Whether the claimants prove the

accidental death that occurred on 19.08.2013 at 2.00

a.m. on account of rash and negligent driving by the

driver of Volvo Bus bearing Reg.No.AP.13/Y-0952

belonging to Sahara Travels. The said issue was

answered in the negative and accordingly the claim

petition was dismissed. Aggrieved by the same, the

claimants are in appeal.

6. Heard Sri Ravi B. Patil, learned counsel for the

appellants and Sri Mallanna Reddy, learned counsel for

respondent No.2-Insurance Company. Perused the

lower court records.

7. Learned counsel for the appellants submits that

the accident had taken place in the morning at 2.00

a.m. on 19.08.2013. The deceased was crossing the

road and the bus in question driven by its driver in a

rash and negligent manner dashed to the deceased, due

to which he suffered grievous injuries and succumbed

to the injuries after one month six days. Further he

submits that FIR was filed on the same day against

unknown person showing the vehicle number. In the

complaint it was stated that the bus belonged to Sahara

Travels. Complaint was filed by one Sri Abdul Majid,

who is said to have admitted the deceased to the

hospital. Further he submits that charge sheet was

filed against the driver of the bus. While recording the

statement of PW.1 - wife of the deceased, the name of

the deceased was recorded by the police,. Learned

counsel would contend that the Tribunal failed to

appreciate the evidence of PW.1 as well as Ex.P1-FIR

and Ex.P2-Complaint. If both the documents Exs.P1

and P2 are read together with statement of PW.1, it

would be clear that the deceased was injured in the

accident involving the above stated Volvo Bus on

19.08.2013 and succumbed to the injuries later. Thus

he prays for allowing the appeal.

8. Per contra, Sri Mallana Reddy, learned counsel for

the Insurer submits that there is no nexus between the

alleged accident and the death of the deceased Rajappa.

He submits that FIR is said to have been filed against

unknown person mentioning the vehicle number and

without naming the injured person. According to the

claimants, FIR is said to have been filed on 19.08.2013

itself, but the learned jurisdictional Magistrate received

the FIR only on 23.08.2013 i.e., after four days after the

date of complaint. Moreover, he submits that

claimants have not placed on record either the wound

certificate or the medical records, where the deceased is

said to have taken treatment initially at General

Hospital, Zaheerabad and subsequently at General

Hospital, Bidar. According to the learned counsel it is a

cooked up claim and the vehicle in question has been

implicated falsely.

9. On hearing the learned counsels for the parties

and on going through the records the only point that

arises for consideration is "Whether the Tribunal is

justified in holding that there is no nexus between the

accident and the death of the deceased Rajappa" ? The

answer to the above point would be in the affirmative for

the following reasons :-

The claimants approached the Tribunal

contending that the death of Rajappa was due to

accidental injuries sustained in the road traffic accident

that occurred on 19.08.2013 at about 2.00 a.m.

involving Volvo Bus bearing Reg.No.AP-13/Y-0952

belonging to Sahara Travels. FIR is lodged on

19.08.2013 at about 2.00 a.m. itself by one Abdul

Majid. Further FIR would indicate that Volvo Bus

bearing Reg.No.AP-13/Y-0952, driven in a rash and

negligent manner dashed one unknown male while he

was crossing the road, which resulted in head injury

and became unconscious. FIR would further indicate

that immediately injured was shifted to General

Hospital at Zaheerabad and after first aid, was shifted to

Government Hospital at Bidar for further treatment.

Even though it is stated that complaint was filed on

19.08.2013, the jurisdictional Magistrate received the

FIR only on 23.08.2013 i.e, four days after the

complaint. No records for medico legal case was

received from the Hospital, where the deceased was said

to have taken first aid i.e., General Hospital at

Zaheerabad.

10. But curiously no document relating to treatment

either at Government Hospital, Zaheerabad or

Government Hospital at Bidar is placed on record to

demonstrate the treatment taken by the deceased

initially and subsequently. The claimants have also not

produced wound certificate to demonstrate the injuries

sustained and whether the injuries was due to road

traffic accident. The wound certificate would have given

clear picture about the manner of injuries sustained

and as to how the injuries were sustained.

11. As stated above Ex.P1 is FIR and Ex.P2 is the

complaint copy. In both Exs.P1 and P2 the name of the

deceased is not shown. The name of the deceased had

come to light only while recording the statement of PW.1

- wife of the deceased, by the police. Filing of charge-

sheet against the driver of Volvo Bus would not be

sufficient to prove that deceased had suffered accidental

injuries involving the Volvo Bus in question.

12. Claimant No.1 - wife of the deceased examined

herself as PW.1 and no other witness is examined to

prove their case. The claimants have not even examined

Sri Abdul Majid, who is said to have filed complaint

before the police and who had taken the deceased to the

General Hospital at Zaheerabad and thereafter to

General Hospital at Bidar. Post mortem report is

marked as Ex.P5, which indicates the cause of death as

due to septicemia due to head injury. It is stated that

the deceased died after one month six days from the

date of accident. Doctor who treated the deceased is

also not examined to say that the deceased died due to

accidental injuries. No material is placed on record to

establish that the death of deceased Rajappa was due to

accident and succumbed to accidental injuries.

13. Based on the material on record the Tribunal has

rightly come to the conclusion that there is no nexus

between the injuries sustained by the deceased and the

alleged accident involving Volvo Bus. We do not find

any error or infirmity in the impugned judgment and

award of the Tribunal.

For the reasons recorded above, the appeal stands

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

NG*