C.A. Vargheesh vs Ananda
2021 Latest Caselaw 977 Kant

                                            MFA.535/2014
                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF JANUARY 2021

                          BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

               M.F.A.No.535/2014 (MV)

BETWEEN:

C.A. VARGHEESH,
S/O ANTHONY
AGED ABOUT 63 YEARS,
AGRICULTURIST,
R/O GUTHYAPPA COLONY,
K.C. NAGARA,
SHIMOGA CITY - 577 201.
                                       ... APPELLANT

(BY SMT. S.B.REKHA FOR SRI. P.N.HARISH, ADV.)

AND:

1.     ANANDA,
       S/O RAMACHANDRA
       AGED ABOUT 28 YEARS,
       R/O GOPALA,
       SHIMOGA CITY - 577 201.

2.     S. RAJENDRA,
       S/O SANJEEVA BANGERI,
       AGED ABOUT 27 YEARS,
       R/O THIRUMALASHWARA NILAYA,
       BEHIND CHURCH,
       SHANTHINAGARA,
       SHIMOGA CITY - 577 201.

3.     THE BRANCH MANAGER,
       THE ORIENTAL INSURANCE
                                                  MFA.535/2014
                            2



       COMPANY LTD.,
       SHIMOGA CITY - 577 201.
                                        ... RESPONDENTS

(R-1 & R-2 ARE SERVED AND UNREPRESENTED)



       THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT      AGAINST     THE    JUDGMENT       AND       AWARD
DATED:18.07.2013 PASSED IN MVC NO.263/2011 ON THE
FILE OF THE 2ND ADDITIONAL DISTRICT JUDGE & AMACT-2,
SHIMOGA, DISMISSING THE PETITION FOR COMPENSATION.


       THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

1. The claimant is in appeal challenging the order by

which the claim petition has been dismissed.

2. The claimant in his claim petition contended that

while he was standing on the side of the road at about

5.45 a.m. on 01.10.2010, the motorcycle bearing

registration No.KA-14-X-5321 driven by the second

respondent hit him, as a result of which, he sustained

injuries and he was entitled for compensation.

MFA.535/2014

3. The owner of the vehicle i.e. respondent No.1

entered appearance and admitted the accident.

However, respondent No.3-Insurance Company denied

the said accident and contended that a false claim was

being made by implicating the motor cycle in collusion

with the owner of the vehicle and the police.

4. The Tribunal on consideration of the evidence

adduced before it, came to the conclusion that in Ex.R1,

(the case sheet) it had been recorded that accident was

as a result of self-fall at 6-00 a.m. near Nethaji Circle,

Gopala village due to bike skid and this clearly indicated

that accident had occurred as a result of the claimant

falling down from the bike.

5. The Tribunal also came to the conclusion that

complaint had been filed after 2½ months in collusion

with owner of the two wheeler and it was therefore a

clear case of no accident at all. The Tribunal also placed

reliance of an affidavit which was filed by the claimant in

which the registration number of the vehicle had been MFA.535/2014

mentioned as KA-14/X-9321, while in the claim petition,

the vehicle number stated was KA-14/X-5321. According

to the Tribunal, this created a suspicion about the

involvement of the very vehicle in the accident and it

accordingly proceeded to dismiss the claim petition.

6. Learned counsel for the claimant contended that

even according to Ex.R1 i.e. the case sheet of the

hospital, the involvement of the motor vehicle cannot be

in dispute. According to her, the case sheet indicated

that there was a motorcycle involved in the accident.

She contended that the self fall mentioned by the

claimant could not by itself lead to the conclusion that

there was a collusion between the owner of the

motorcycle and claimant. She contended that it cannot

be inferred from the recording of self fall in the case

sheet that the claimant was sitting on motorcycle and he

himself fell down from motorcycle. She submitted that

rider of the motorcycle himself appeared before the

Court and deposed that an accident occurred when the MFA.535/2014

claimant suddenly crossed the road and he collided with

the claimant. She submitted that in the light of this

positive evidence produced before the Tribunal, the

Tribunal could not have dismissed the claim petition.

7. Learned counsel for respondent No.3/Insurance

Company, on the other hand, contended that the

findings of the Tribunal regarding the involvement of the

vehicle cannot be found fault with. He contended that

the entries in medical register and case sheet clearly

indicated that it was a self fall due to the bike skid and

therefore, the incident could not be construed as motor

vehicle accident.

8. I have considered the submissions of the learned

counsel for both the parties and perused the materials

on record.

9. The entry in the case sheet upon which reliance is

placed by the Tribunal, reads as follows:

MFA.535/2014

"History of self fall today morning at 6-00 a.m.

near Nethaji Circle, Gopala village due to bike skid."

10. A reading of the said case sheet which indicates

that the motorcycle was involved in the accident. But,

that noting in the case sheet cannot by itself lead to the

inference that the claimant was riding a motorcycle or

was riding pillion on the motorcycle and had fallen from

the motorcycle. This note made in the case sheet, in my

view, cannot lead to an inference that bike was not

involved in the accident. It is also to be noticed here that

the Doctor who made the entry was not summoned by

the Insurance company and subjected to cross

examination and it was also not established as to who

informed the Doctor about the manner of the incident so

as to accept the noting. It is also to be noticed that an

entry in a medical record by a medical practitioner is for

the purpose of creating a record of the treatment given

to the patient and an entry in the case sheet cannot be MFA.535/2014

the definitive proof as to the occurrence of the accident

or the manner of the accident.

11. It is to be stated here that since the rider of

motorcycle himself appeared before the Tribunal and

admitted that there had been an accident between the

motorcycle and the claimant when the claimant tried to

suddenly cross the road the factum of the accident

cannot be seriously in dispute. Further, the factum of the

accident was not even disputed by the owner of the

vehicle. The Insurance Company has not produced any

credible evidence to prove that there was collusion

between the rider and owner of the motor cycle with the

claimant. A mere allegation of collusion would not ne

proof of collusion and the same is required to be

explicitly pleaded and proved.

12. These factors, to my mind, is by itself sufficient to

come to the conclusion that an accident did occur

between the claimant and the motorcycle and and the

claimant did suffer injuries as a result of the accident.

MFA.535/2014

13. As far as the argument of the learned counsel

regarding the delay in lodging FIR is concerned, it is to

be stated here that the claimant was 60 years old and he

was hospitalized for a considerable amount of time.

Having regard to this fact, in my view, the delay in

lodging the complaint would not be of any material

consequence for the purpose of deciding whether an

accident did or did not occur.

14. As a consequence, I set aside the order of the

Tribunal and hold that an accident did occur between the

claimant and the motorcycle.

15. The matter is now remanded to the Tribunal for

consideration of the entitlement of the claimant for the

injuries suffered by the claimant.

The appeal is thus allowed.

MFA.535/2014

Since all the parties are represented here, the

parties shall enter appearance before the Tribunal on

22.02.2021 and take further instructions in the matter.

Sd/-

JUDGE

KTY