Karnataka High Court
Sri H R Shanmukha vs Sri Ananda B on 24 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO.3865/2012(MV)
BETWEEN:
SRI. H.R. SHANMUKHA,
S/O LATE H.B. RAME GOWDA,
AGED ABOUT 52 YEARS,
RESIDING AT HEHRUNAGAR,
CHICKMAGALUR,
OWNER OF RAGHAVENDRA BUS
BEARING REG.NO.MEC-3809.
... APPELLANT
(BY SRI. K.T. GURUDEVAPRASAD , ADVOCATE)
AND:
1. SRI. ANANDA .B,
S/O LATE BHOPALAN,
AGED ABOUT 30 YEARS,
2. KUM. UMA,
D/O LATE BHOPALAN
AGED ABOUT 27 YEARS,
BOTH ARE RESIDING AT,
SANTHE MARKET,
CHICKMAGALUR.
... RESPONDENTS
(BY SRI. MOHAN BHAT, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:22.3.2012
2
PASSED IN MVC NO.367/2008 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE AND MMACT, CHICKMAGALURU, AWARDING A
COMPENSATION OF RS.2,14,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALISATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.11.2023, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by respondent No.2-owner of the
vehicle, challenging the judgment and award passed by the
Principal District Judge and M.A.C.T., Chikmagalur, in MVC
No.367/2008, dated 22.03.2012.
2. For the sake of convenience, the parties herein
are referred as per the ranks occupied by them before the
Tribunal.
3. The brief factual matrix leading to the case are
as under:
Petitioners are the children of deceased Mariyamma.
On 02.01.1992 deceased Mariyamma was travelling as a
passenger from Chikmagalur to Joldal in Raghavendra Bus
bearing registration No.MEC 3809 driven by respondent
No.1. Near Hukkunda Village, at 9:00 a.m., the driver drove
it in a rash and negligent manner. As a result, he lost
control over the vehicle and hence, the vehicle capsized and
fell into the roadside ditch. Mariyamma sustained grievous
injuries to her left temporal region, left leg and other parts
of the body and immediately she was shifted to
M.G.Hospital, Chikmagalur and next day she was taken to
NIMHANS, Bangalore, wherein she was treated as an
inpatient and she suffered fracture of spinal cord and not in
a position to move. She subsequently took follow up
treatment after discharge for more than 6 months.
However, due to accidental injuries she died on 07.08.1992.
She was hale and healthy prior to the accident and was
earning Rs.3,000/- per month by coolie. She was only
earning member in the family and the petitioners after the
death of their mother, lost her love and affection and they
suffered mental agony. Hence, they filed a petition under
Section 166 of the Motor Vehicles Act, 1988 ('MV Act' for
short), claiming compensation of Rs.5,00,000/-.
4. Respondent No.1 is reported to be dead and case
against him was abated. Respondent No.2 contested the
matter by disputing the claim. He asserted that claim
petition itself is barred by law of limitation and there is no
nexus between the accidental injuries and death of
deceased. It is asserted that deceased died after 8 months
from the date of accident and deceased did not suffer any
grievous injuries and her death was not due to accidental
injuries. No postmortem was conducted on the dead body
and there is no nexus between the death and injuries.
Hence, respondent No.2 has sought for dismissal of the
claim petition.
5. After appreciating the oral and documentary
evidence, the Tribunal has allowed the petition in part by
awarding total compensation of Rs.2,14,000/- with interest
at the rate of 6% per annum by fastening the liability on
respondent No.2.
6. Being aggrieved by this judgment and award,
respondent No.2-owner is before this Court by way of this
appeal.
7. Heard the arguments advanced by the learned
counsel for the appellant and learned counsel for the
respondent. Perused the records.
8. The learned counsel for appellant would contend
that involvement of vehicle is not disputed and deceased
was a passenger in the bus. It is also asserted that she filed
a claim petition during her lifetime for injuries in MVC
No.161/1992 and she received Rs.12,000/- towards
satisfaction of her claim under Ex.R2 as there is no
insurance to the vehicle, which was paid by the appellant. It
is further asserted that she has undertaken to withdraw the
petition, but she died and subsequently, the petition came
to be dismissed. It is asserted that the Tribunal has given
deduction to this Rs.12,000/-, which clearly establishes that
payment was received by the deceased. He would also
contend that the deceased suffered simple injuries and no
Post Mortem was conducted. Further, he disputes the status
of the petitioners as legal representatives of the deceased.
In the police intimation-Ex.P1, the deceased was shown to
be Mariyamma, wife of Gopala aged about 25 years and in
Ex.R1-discharge cum identity card, the name of deceased
was shown to be Mariyamma, father/Husband name was
shown to be Rangaiah. It is also asserted that Ex.P7 is the
genealogy produced, wherein the husband's name is shown
as Bhopalan and same name is shown in the claim petition.
But all along, records disclose that the husband's name of
Mariyamma is Gopala and hence, there is no relation
between the claimants and deceased. Ex.P7 was drawn at
the instance of claimant No.2, who was hardly aged about
11 years when the information was given and hence, Ex.P7
cannot be looked into. It is asserted that Ex.P7 was
prepared only for the purpose of this case and the claimants
have not produced their school records, as it is admitted
that PW1 studied up to SSLC. It is further asserted that
death was after 9 months and earlier claim petition filed by
the deceased herself was dismissed and hence, it is
asserted that there is no nexus and sought for dismissal of
the claim petition by allowing the appeal.
9. Per contra, the learned counsel for the claimants
assert that they were minors when deceased died and Ex.P7
establishes the relationship and Ex.P8 establishes the
nature of grievous injuries suffered by Mariyamma. He
would further assert that the earlier claim petition was
dismissed for non-prosecution and Ex.R2 came to be
disputed and hence, it is sought for dismissal of the appeal.
10. Having heard the arguments and perusing the
records, it is evident that Mariyamma has suffered injuries
in the road traffic accident dated 02.01.1992 occurred at
9:00 a.m. involving the bus owned by respondent No.2 i.e.,
appellant herein. The alleged accident is said to have taken
place on 02.01.1992 and admittedly, Mariyamma died 8
months later on. The death certificate of Mariyamma is
produced at Ex.P6, which discloses that she died on
07.08.1992 and admittedly, accident has occurred on
02.01.1992. Hence, she died 8 months later on.
Interestingly, her husband's name was shown to be the wife
of Gopala. This Ex.P6 was relied by the claimants. Further,
Ex.P1 is dated 12.03.1992, issued by the Inspector,
intimating Mariyamma her right to claim compensation.
Ex.P1 also discloses that it is in the name of Mariyamma
w/o Gopala and she was shown to be aged about 25 years.
Hence, from Ex.P1 & Ex.P6, it is prima facie evident that the
deceased was named as Mariyamma w/o Gopala. But all
along, claimants assert that they are the children of
Bhopalan. The claimants are relying on Ex.P7, which is the
genealogical tree issued by the Revenue Inspector of
Chikmagalur Town Municipal Corporation. It is dated
05.07.1999 and claims to have been signed by claimant
No.2. But claimant No.2 was not examined in the instant
case. Further, the signature was in Kannada language, but
on the petition claimant No.2 signed in English. The
claimant No.2 never asserted that Ex.P7 bears her
signature.
11. Apart from that, in the year 2008, the age of
claimant No.2-Uma is shown to be 23 years. This Ex.P7 was
issued on 05.07.1999 and hence, if this is taken into
consideration, then as on the date of issuance of Ex.P7, she
should be aged about 13 to 14 years. When she is aged
about 13 to 14 years, the question of she furnishing
information for drawing genealogy does not arise at all.
12. Apart from that, the name of the father of
Mariyamma is shown to be Sannaiah, but in Ex.R1, the
name of Rangaiah appears. In all other documents, the
name of only Mariyamma appears, but it is not referred as
to whether she is the wife of Bhopalan. None of the medical
records disclose that she was identified herself as the wife
of Gopala. All the documents disclose either wife of Gopala
or daughter of Rangaiah. Hence, unless the claimants
establish their relation with the deceased Mariyamma, the
question of claiming compensation does not arise at all.
13. Claimant No.1-Ananda is examined as PW1. He
claimed that his father's name is Bhopalan and Mariyamma
was his mother and his father predeceased his mother. But
he claims that he does not know the date of death of his
father and he also claims that he does not know the name
of mother's father. He asserts that his grandfather was
Armugam and grandmother was Lakshmamma, but both
these names do not find the place in Ex.P7.
14. When a suggestion was made to this witness that
Mariyamma died issueless, he denied the said suggestion.
But he admits that in Ex.P1, the name of Mariyamma is
shown to be wife of Gopala. Even he pleads ignorance to
the fact that till 12.03.1992, Mariyamma was alive, but he
himself has produced a death extract of Mariyamma at
Ex.P6, wherein it is evident that she died on 07.08.1992.
Hence, it is evident that PW1 is not giving true picture and
he claims that she was inpatient in NIMHANS for 3 months.
But Ex.P8 discloses that she was admitted in the hospital on
03.01.1992 and certain fractural injuries were noticed.
Further, Ex.R1 discloses that she was admitted again in
different hospital on 04.01.1992 and discharged on
05.01.1992. Hence, the contention of the claimant that she
was inpatient for 3 months in NIMHANS cannot be accepted
and no such records or notes are forthcoming. The records
disclose that she was treated till 04.01.1992 and hence, it is
evident that subsequently, she was got discharged and she
was admitted in a different hospital as per Ex.R1, but again
discharged on 05.01.1992.
15. As per the appellant, there is no nexus between
the deceased and injuries sustained by her in the road
traffic accident. The claimants placed reliance on Ex.P8,
which discloses that she suffered a fracture and dislocation
of D8 and there is a traumatic paraplegia. But the claimant
should have examined some doctor to prove that there is
any nexus between these injuries and death of Mariyamma.
At the first instance, the death is not reported to the
nearest police station and she died in the house. No
evidence is forthcoming that after 05.01.1992, she was
under treatment regularly till her death. The Tribunal has
observed as if she was regularly undergoing treatment, but
no such evidence is forthcoming. Merely because she has
suffered certain traumatic paraplegia, it cannot be
presumed that there is any nexus between the death &
injury and nothing prevented the claimants from examining
any doctor from NIMHANS to substantiate this contention.
16. Apart from that, in all the medical records relied
on as per Ex.P8, it is pertaining to Mariyamma and
husband's name is shown to be not known and her address
is shown to be C/o Chikkegowda. Who is this Chikkegowda
is not at all forthcoming. In Ex.P1, the address is shown to
be Mariyamma W/o Gopala, Market Road Chikmagalur.
There is no reference of W/o Bhopalan in Ex.P1 & Ex.P6 and
the petitioners are required to show that they are related to
deceased Mariyamma being her son and daughter. But as
such records are forthcoming.
17. It is not the case of the claimants that their
father is also known to be Gopala. When Ex.P6 was
confronted to PW1, which is his own document, he admits
that in Ex.P6, the husband's name is shown as Gopala, but
he tried to give an explanation as by wrong pronouncement
they might have recorded the name as Bhopalan. In that
event, he could have moved the concerned corporation for
rectification, but without rectifying the said mistake, now
they are giving an untenable explanation, which cannot be
considered in view of Section 91 of the Evidence Act, 1872.
Ex.P1 and Ex.P6 disclose that injured Mariyamma was wife
of Gopala, but the claimants claim to be the children of
Bhopalan. Hence, at the first instance, they have not proved
their status as legal heirs of deceased Mariyamma.
18. Further, evidence clearly discloses that
Mariyamma had filed earlier claim petition during her
lifetime and same was dismissed for non-prosecution. If the
claimant had filed a claim petition, she should have signed
and disclosed her status before the claim's Tribunal by
disclosing her husband's name, but said documents are not
produced by the claimants. Ex.R2 is relied by the owner,
asserting that he paid Rs.12,000/- to Mariyamma pertaining
to the injuries and this document is dated 15.03.1992. It is
not the claim of the claimants that the signature is not that
of Mariyamma, but a simple suggestion was made that
Ex.R2 was a concocted document. In that event, claimants
should have produced the petition copy filed by the
deceased in 1992 claiming compensation pertaining to
injuries sustained by her, wherein she should have disclosed
her status and admittedly, she filed a claim petition initially,
which was subsequently dismissed for non-prosecution. The
documents relied do not assist the appellants to prove their
status as children of Mariyamma. They have also failed to
prove the nexus between death and injuries caused by
examining any doctor in this regard. The Tribunal failed to
appreciate any of these aspects and on presumptions and
assumptions, proceeded to award the compensation that
too after accepting Ex.R2 in the absence of any material
evidence regarding nexus between injuries and death. The
entire approach of the Tribunal is erroneous and arbitrary
and considering these facts and circumstances it has
resulted in miscarriage of Justice. Hence, appeal needs to
be allowed. Accordingly, I proceed to pass the following
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award
passed by the Principal District Judge and
MACT, Chikmagalur, in MVC No.367/2008
dated 22.03.2012, is set aside.
(iii) The claim petition filed by the
respondents herein i.e., claimants in MVC
No.367/2008 stands dismissed.
(iv) The amount if any deposited by appellant
shall be refunded to him.
Sd/-
JUDGE
DS
