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M.V.C.4650/2015 C/w 4651/2015

REASONS

ISSUE No.1 IN BOTH THE PETITIONS:

15. It is the case of the petitioners that, on

22.09.2015 at about 6.45 p.m, the deceased in

MVC.4650/2015 was riding the Bajaj Discover motor

cycle bearing Reg.No.KA-02-HA-1154 along with his wife

Smt. Swetha @ Bhagyamma, on Bangalore - Tumkur

Road (NH-4) towards Bangalore, slowly, cautiously and

carefully by observing the traffic rules on extreme left

side of the road, at that time a BBMP Lorry bearing

Reg.No.KA-02-AD-8658 driven by its driver in rash and

negligent manner, dashed against the deceased motor

cycle from behind. Due to impact the rider and the

pillion rider fell down from the motor cycle and the lorry

ran over the deceased Swetha. The deceased in

MVC.4650/2015 was sustained multiple injuries all over

the body and deceased in MVC.4651/2015 was died on

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the spot. The respondents have denied the allegations

made in the claim petition.

16. In order to prove the actionable negligence,

petitioner No.3 of MVC.4650/2015 and the minor

guardian in both the petitions by name Muniyappa

entered in to the witness box and has been examined as

P.W.1 and got marked the documents at Ex.P.1 to

Ex.P.17. When the matter was posted for cross-

examination he reported as dead and his daughter i.e

petitioner No.3(a) brought on record. This petitioner

No.3(a) has filed her affidavit in lieu of her examination in

chief and examined as P.W.2. In her evidence affidavit

she has reiterated all the averments and allegations

made in the claim petition. P.W.2 has deposed in her

evidence that, the accident has occurred due to rash and

negligent driving of the Lorry bearing Reg.No.KA-02-AD-

8658 by its driver. During the course of cross-

examination, she has denied the suggestion put to her

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that, the accident occurred due to negligence of deceased

Appanna but not due to the negligence on the part of the

lorry driver. Her relationship with the deceased is also

denied by the respondent that she has concocted the

Genealogical tree produced by her at Ex.P.19. Except the

said suggestions nothing worthwhile material has been

elicited from the mouth of P.W.2 to disbelieve her version

in the examination-in-chief.

17. The petitioners, in both the cases have relied on

various copies of police documents produced at Ex.P.1 to

Ex.P.8 and Ex.P.13. Out of these documents, Ex.P.1 is

First Information Report, Ex.P.2 is Complaint, Ex.P.3 is

Post Mortem Report, Ex.P.4 is Panchanama, Ex.P.5 is

Inquest Mahazar, Ex.P.6 is Sketch, Ex.P.7 is IMV Report,

Ex.P.8 is Charge Sheet and Ex.P.13 is Post Mortem

Report. Ex.P.1 i.e the First Information Report which

discloses that a case has been registered against the

driver of the BBMP Lorry bearing Reg.No.KA-02-AD-8658

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for the offences punishable under Sec.279, 337, 304(A) of

Indian Penal Code. After investigation, the police have

filed the charge sheet against the driver of the said Lorry

bearing Reg.No.KA-02-AD-8658 for the offences

punishable under Sec.279 and 304(A) of Indian Penal

Code as per Ex.P.8. Ex.P.1 to Ex.P.8 and Ex.P.13 prima-

facie establishes that, there is rash and negligent driving

of the BBMP Lorry by its driver. But respondents have

disputed as, the accident occurred due to the negligence

of the deceased and not due to the negligence of the

driver of the BBMP Lorry. In this respect, respondents

have not adduced any oral and documentary evidence

and they have not made any attempt to examine the

driver of the said Lorry bearing Reg.No.KA-02-AD-8658 to

show that, there was no negligence on the part of the

driver of the said Lorry. The driver of the said Lorry is

the best witness to say about the negligence. To

establish their defence, respondents have not adduced

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any evidence before this Tribunal. In the absence of the

rebuttal evidence, the defence taken up in the written

statement remained as pleading without any proof which

does not have any evidentiary value at all.

18. The petitioners have produced the copies of the

Post-Mortem Report at Ex.P.3 and Ex.P.13. Ex.P.3,

which discloses that the cause of death of deceased

Appanna is due to head injury and injury to vital organ

brain. Ex.P.13 discloses that, the cause of death of

deceased Swetha appears to be due to shock and

hemorrhage falling intra abdominal bone injury causing

damage to liver, spleen, kidneys. The said Ex.P.3 and

Ex.P.13 are not disputed by the respondents. It is clear

from the respective documents for having registered the

case in Cr.No.355/2015 and Charge Sheet came to be

filed which remained unchallenged. So, under these

circumstances the evidence of P.W.1 and P.W.2 coupled

with the documentary evidence establishes the fact that

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