Karnataka High Court

Noorbasha S/O Subhan Sab vs Shafiullah on 17 August, 2021

Author: B.Veerappa And Kamal

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH
     DATED THIS THE 17TH DAY OF AUGUST 2021
                          PRESENT
       THE HON'BLE MR. JUSTICE B. VEERAPPA
                             AND
       THE HON'BLE MR.JUSTICE M.G.S. KAMAL
                MFA No.102642/2015 (MV)

Between:

Noorbasha S/o.Subhan Sab,
Age 24 years, Occ: Labour,
R/o.Choranuru village, Sandur Taluk,
   Dist: Ballari, Now at Cowl Bazar, Bellari.
                                                     ... Appellant

(By Shri R.H.Angadi, Advocate)

And:

1.     Shafiullah S/o.Khasimsab.P.M,
       Age major, Occ: Driver,
       R/o.Choranur village,
       Sandur Taluk, Dist: Ballari.

2.     Nazeer Basha S/o.Mohaboob Subhani,
       Age 27 years, Occ: Owner of the Motorcycle,
       R/o.1st Ward, R/o.Choranur village,
       Sandur Taluk, Dist: Ballari.

3.     The Divisional Manager,
       M/s.Oriental Insurance Co. Ltd.,
       Ballari.
                                                ... Respondents
(By Shri J.M.Anilkumar, Advocate for R-1 & 2,
     Smt.Preethi Shashank, Advocate for R-3)
                              :2:



      This Appeal is filed u/s 173(1) of MV Act, 1988 against
the Judgment and Award dt.26.03.2015 passed in MVC
No.838/2013 on the file of the Member, MAC-II, Ballari,
dismissing the claim petition filed u/s.166 of MV Act.

     This appeal being heard and reserved for Judgment,
coming on for pronouncement of Judgment, this day,
M.G.S. Kamal, J, delivered the following:


                       JUDGMENT

1. This appeal under Section 173(1) of the Motor

Vehicles Act, 1956 (for short 'the Act') is filed by the

claimant against the Judgment & Award dated 26.03.2015

passed in MVC No.838/2013 on the file of the Member,

MACT-II, Bellary (for short 'the Tribunal') for dismissing the

claim petition.

2. The brief facts of the case leading upto the filing

of this appeal are that the claimant was traveling as a

pillion-rider along with respondent No.1 on a motorcycle

bearing Registration No.KA-35/W-9098 on 26.03.2013 at

about 6.15 p.m. from Choranuru villge to Tumbaraguddi

village. The respondent No.1 being the rider of the motor-

cycle drove the same in a rash and negligent manner, lost

control over the motorcycle, as a result both the claimant

and the respondent No.1 fell into a ditch. Due to the

impact, the claimant sustained grievous injuries in the

nature of fracture to his right hand, right fore-arm, right

shaft humorous and sustained injuries all over the body.

That the claimant took treatment at a private hospital,

Kudligi and thereafter at VIMS Hospital, Ballari, wherein his

right-hand was amputated and incurred huge amount

towards medical expenses.

3. Thereupon, the claimant filed a claim petition

under Section 166 of the Motor Vehicles Act, claiming

compensation in a sum of Rs.32,00,000/- together with

costs and interest at the rate of 24% p.a. from the date of

the accident till realization contending inter alia that the

claimant was hale and healthy prior to the accident and was

earning Rs.450/- per day as labourer/coolie. Due to the

rash and negligent riding of the motorcycle by the

respondent No.1, resulting in the accident causing grievous

injuries to the claimant consequently amputating his right

hand has drastically reduced his functional ability. Hence,

sought for compensation.

4. Upon service of notice, Respondent No.1, the

rider of the motorcycle and the respondent No.2, the owner

of the motorcycle appeared before the Tribunal.

Respondent No.2 filed statement of objections and the

respondent No.1 filed a memo adopting the statement of

objections filed by the respondent No.2. Respondent No.2

in his statement of objections denied the allegations made

in the petition and his liability to pay the compensation. It

is further pleaded that the vehicle was insured with the

respondent No.3-Insurance Company and the

compensation, if any, to be awarded to the claimant, the

respondent No.3 would be liable to pay the same. Hence,

sought for dismissal of the petition against them.

5. The respondent No.3 appeared and filed the

statement of objections denying the petition averments. A

specific defence was set up denying the involvement of the

motorcycle and claimant sustaining injury in the alleged

road traffic accident. Besides, contending that the belated

filing of the complaint was only for the purposed of claiming

compensation. That the complaint was filed at belated

stage only to claim compensation. Hence, sought for

dismissal of the petition.

6. The Tribunal based on the pleadings, framed the

issues and recorded the evidence of the parties. The

claimant examined himself as PW1 and also examined the

Dr. Srinivas as PW2 and got exhibited 46 documents

marked as Exs.P1 to P46. No evidence has been led in on

behalf of the respondents except marking of a copy of

Insurance Policy as Ex.R1.

7. The Tribunal on appreciation of the oral and

documentary evidence made available has held that the

claimant failed to prove that he sustained injuries on

26.03.2013 in a road traffic accident involving the

motorcycle bearing registration No.KA-35/W-9098 and

consequently dismissed the petition. Aggrieved by the

same, the present appeal is filed by the appellant-claimant.

8. Heard the learned counsel appearing for the

parties.

9. The learned counsel for the appellant submitted

that the Tribunal erred in not appreciating the fact that the

Police after registering the case had conducted

investigation and had submitted the charge sheet against

the respondent No.1-rider of the motorcycle. The

respondent No.1 and the respondent No.2, owner of the

motorcycle had not challenged the said charge sheet

submitted by the Police. That the Tribunal failed to

appreciate the fact that the Doctor had given a report that

the injuries sustained by the claimant was in a road traffic

accident. That the Tribunal grossly erred in dismissing the

claim petition merely on the ground of delay of 15 days in

registration of the complaint without appreciating the fact

that the claimant had been admitted as inpatient and was

unable to lodge the complaint in time. That the conclusion

arrived at by the Tribunal was erroneous and without

appreciating the material evidence made available and was

thus liable to be set aside.

10. On the other hand, the learned counsel for the

Insurance Company submitted that even if there was a

delay in filing the FIR, there is no material to support the

claim of the claimant having suffered injuries in the road

traffic accident. That as per the medical records the

claimant had sustained the injuries due to the self fall in

the house and not in the road traffic accident. Thus he

submitted that the conclusion arrived at by the Tribunal

cannot be found fault with. Hence, sought for dismissal of

the appeal.

11. In view of the rival contentions urged by the

learned counsel for the parties, the issue that would arise

for our consideration is:

"Whether the Tribunal is justified in dismissing the petition on the premise of delay in filing the FIR and that the claimant failed to prove that he sustained injuries on 26.03.2016 in a road traffic accident involving the motorcycle bearing registration No.KA-35/ W-9098?"

12. We have given our thoughtful consideration to

the arguments advanced by the learned counsel for the

parties and perused the records carefully.

13. The Tribunal at paragraph No.10 of the

impugned judgment has held as under:

"10. On perusal of Ex.P1-FIR, the same was lodged on 11.4.2013 there is an inordinate delay of more than 15 days in filing the compliant. At the time of filing of the compliant as per Ex.P2 only it was alleged that the petitioner sustained injuries to his right arm due to Road Traffic Accident involving a motorbike bearing Reg. No.KA-35/W-9098. So, it is only based on the FIR, the police have conducted investigation and submitted charge sheet, alleging offences punishable u/Ss. 279, 337 and 338 of IPC. Here the petitioner did not examine the Investigating Officer who had submitted the charge sheet and who had conducted the investigation, to prove the alleged accident and he sustained any injuries. Ex.P7 is the wound certificate issued on 27.06.2013 without disclosing the history of injuries. So. Ex.P7 has no evidentiary value in this case. The petitioner admits that he took treatment as inpatient at VIMS Hospital, Ballari and did not disputes the inpatient records marked at Exs.P8 to 17. So, Exs.P8 to 17 are the interior documents which discloses the nature of the injuries sustained by the petitioner as self inflicted injuries due to self fall inside the house by the petitioner. No rebuttal evidence is produced by the petitioner to rebut the entries made in Exs.P8 to 17. So, it is very much clear that the petitioner by taking the advantage of his fall in his house and sustaining of fracture, then made an after thought to file a complaint as if he sustained injuries in Road Traffic Accident. So, despite the FIR and other documents produced by the petitioner to show that he sustained injuries in Road Traffic Accident, the inpatient records clearly discloses initially that the petitioner sustained injuries only due to a fall in the house and not in Road Traffic Accident. So, if at all the petitioner really sustained any such injuries in Road Traffic Accident, certainly he would have

filed a complaint immediately or else he would have given information before the hospital authorities to the effect that he has sustained injuries only in Road Traffic Accident. So, the petitioner has utterly failed to prove that he sustained injuries on 26.03.2013 in Road Traffic Accident with involvement of the motorbike bearing Reg. No.KA-35/W-9098. Accordingly I treat issue No.1 in negative."

Having held as above, the Tribunal proceeded to dismiss

the petition.

14. The Apex Court in the case of RAVI Vs.

BADRINARAYAN AND OTHERS reported in (2011)4 SCC

693 has held that the delay in lodging the FIR cannot be a

ground to doubt the claimant's case in genuine cases, in

Indian conditions, it is not expected that a person would to

rush to Police station after accident, treatment of victim is

given priority over lodging the FIR, Kith and kin of the

victim are not expected to act mechanically with

promptitute in lodging the FIR. Hence, the delay in lodging

the FIR is not a ground to dismiss the claim petition in view

of Section 154 of the Cr.P.C., 1973. Further, the Apex

Court in the case of MANGLA RAM VS. ORIENTAL

INSURANCE COMPANY LIMITED AND OTHERS reported

in (2018)5 SCC 656 has held that the proceedings under

the Act has to be decided on the basis of preponderance of

probabilities and the claimant is not required to prove the

accident beyond reasonable doubt.

15. In view of the aforesaid legal principles, it is

necessary to re-appreciate the material available on record.

It is the case of the claimant that on 26.03.2016 at about

6:15 p.m., he was proceeding as a pillion rider along with

the respondent No.1 who while riding the motorcycle lost

control and thereby both the claimant and respondent No.1

fell into a ditch, resulting in grievous injuries to the

claimant. That initially he was treated at the private

hospital and thereafter admitted to VIMS Hospital, Ballari

on 29.03.2018. On 31.03.2013, claimant had undergone

procedure for amputation of his right arm above the elbow.

The claimant was thus treated in the said hospital upto

04.05.2013. That the claimant had filed the complaint on

11.04.2013 while he was still in the hospital.

16. The documents which refer to the injuries

sustained by the claimant following road traffic accident

(RTA) on account of fall from the bike is Ex.P8, Summary

Sheet (Admission Record issued by VIMS, Hospital, Ballari),

wherein over the page No.58 at column Pre-Anesthetic

Instruction, it is noted as "H/O A/E amputation 15 days

back after injury to ® forearm following RTA" and also over

the page No.59 wherein it is noted as "H/O self fall from

bike". However, in the discharge summary at Ex.P9, dated

04.05.2013 (page No.63), there is a noting as "H/O self

fall at home". Ex.P10 at page No.64, though there is

noting of "H/O of self fall at home", there is a seal affixed

indicating "MEDICO LEGAL CASE". Except mentioning "self

fall at home" in the discharge summary at page No.63

which is subsequent to entry in pre-anesthetic column at

page 59 and at Ex.P10 page No.64, there is no other

reference with regard to self fall at home. Thus an omnibus

statement of finding by the tribunal as extracted

hereinabove referring to Exs.P8 to P17, purportedly

indicating self inflicted injuries cannot be accepted. The

tribunal does not appear to have appreciated the contents

of Exs.P8 to P17 as noted above.

17. In the instruction form while obtaining the

special consent for amputation at page No.66 of Ex.P9, the

statement of the claimant has been recorded which is

extracted hereunder:

"I have sustained injury to right arm on 29.03.2013 by self fall for which I had taken treatment from an osteopath where I was treated with massages and light bandage. After 2 days I lost sensations over entire right upper and kipt ove forearm blackened with blood and severely of entire limb. I was shifted to VIMS, Bellary, I was explained in my own understandable language that my right upper limb has become non-functional due to compartment syndrome and gangrenes stances have started. I full understand that if not amputated I my depend sepals which may be life there hanky. All options have been explained to me and I give my consent for amputation of right upper limb."

Thumb impression of the claimant has been obtained on

the above statement.

18. Complaint with regard to the accident was filed

before the Gudekote P.S. on 11.04.2013 which was

registered in Crime No.26/2013 in which the claimant has

stated that while he was proceeding with respondent No.1

on motorcycle, the respondent No.1 lost control over the

motorcycle and fell into a ditch. The said complaint is prior

to the date of discharge summary at Ex.P9 dated

04.05.2013.

19. A charge sheet at Ex.P3 has been filed by the

Gudekote P.S. against respondent No.1 under Section 279,

337, 338 of IPC read with Section 183 of M.V. Act, 1988.

The MVA report at Ex.P6 refers the damages to head light

doom and, side view mirror of the vehicle. Thus, the

aforesaid material would probablise that the claimant

having met with a road traffic accident.

20. It is to be noted that right from the reference of

"injury from RTA", "self fall from a bike" as found over the

page Nos.58 and 59, and in the complaint filed on

11.04.2013, there is consistency in the statement of the

claimant with regard to his fall from the motorcycle due to

rash and negligent riding of the motorcycle by respondent

No.1. A charge sheet has been filed confirming the accident

as per Ex.P3.

21. The other material evidence coupled with the

FIR, Charge Sheet and the connected documents thereon

probabalise the claimant falling from the motorcycle and

sustaining grievous injuries.

22. Merely because of entry in the discharge

summary dated 04.05.2013 Ex.P9 and in Ex.P10 (with a

seal indicating MEDICO LEGAL CASE thereon" with regard

to history of "self fall at home" which is subsequent to the

lodging of the complaint and the finding of the Tribunal

extracted herein above, cannot be sustained.

23. In view of the law laid down by the Hon'ble

Apex Court in the case of RAVI Vs. BADRINARAYAN

AND OTHERS (supra), delay in lodging the FIR cannot be a

ground to doubt the claimant's case in genuine cases. The

appreciation of the evidence by the Tribunal is therefore

incomplete and in view of the aforesaid analysis, we are of

the considered opinion that the matter has to be remitted

to the Tribunal for reconsideration of the material evidence

on merits. Yet another reason for our conclusion to remit

the matter is that the Tribunal has not assessed the

disability and compensation payable to the claimant. Even

for this reason, the matter requires to be remitted to the

Tribunal.

24. For the aforesaid analysis, we pass the

following:

ORDER

(i) The appeal is allowed.

(ii) The Judgment & Award dated 26.03.2015 passed in MVC No.838/2013 on the file of the Member, MACT-II, Bellary is set aside.

(iii) The matter is remitted to the Tribunal for fresh consideration.

(iv) The parties are directed to appear before the Tribunal on 06.09.2021 without expecting further notice from the Tribunal.

(v) The Tribunal shall afford opportunity to the parties to lead further evidence and to cross examine the witness, if any.

               The       parties    shall     cooperate          in
               expeditious     disposal      of   the     matter
               without seeking any adjournment.




       (vi)    It is made clear that, we have not

expresses anything on the merits of the case. The tribunal shall consider the matter afresh and pass necessary order in accordance with law within a outer limit of 6 months from the date of receipt of the certified copy of this order.