Sri Srinivas B L vs Sri Sasi Knth Vallem
2021 Latest Caselaw 2099 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 3RD DAY OF JUNE, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO. 1640/2013 (MV)

BETWEEN:

SRI. SRINIVAS B.L.
S/O. M. LAKSHMINARAYANA
AGED 46 YEARS
OCCUPATION: NIL
R/O. No.9, SKR MARKET
BENGALURU-560 002.                           ... APPELLANT

            (BY SRI SURESH M. LATHUR, ADVOCATE)

AND:

1.     SRI. SASI KNTH VALLEM
       S/O. VALLEM JAGARAO
       R/O. No.68/21, FIRST MAIN ROAD
       LOWER PALACE ORCHADE
       BENGALURU- 560 003.

2.     THE MANAGER
       TATA AIG GENERAL INSURANCE CO., LTD.,
       No.41, CRISTU COMPLEX
       2ND FLOOR, LAVELLE ROAD
       BENGALURU-560 001.              ... RESPONDENTS

           (BY SRI H.S.LINGARAJ, ADVOCATE FOR R2
                R1 SERVED, UNREPRESENTED)
                                 2



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.08.2012
PASSED IN MVC.NO.2224/2010 ON THE FILE OF THE XIV
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BENGALURU,    DISMISSING    THE  CLAIM   PETITION   FOR
COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

Though the matter is listed for admission today, with the

consent of the learned counsel for both the parties, it is taken up

for final disposal.

This appeal is filed challenging the judgment and award

dated 29.08.2012, passed in M.V.C.No.2224/2010 on the file of

the Motor Accident Claims Tribunal, Court of Small Causes,

Bengaluru City, SCCH.10 ('the Tribunal' for short) dismissing the

claim petition.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case is that on 23.03.2009

at about 11.30 a.m., the claimant was riding his Scooter bearing

registration No.CKP-6570 along with his wife on 11th Cross,

Malleswaram towards Post office, at that time a Car bearing

Registration No.KA-41-M-1750 driven by its driver on reverse

gear with high speed in a rash and negligent manner and dashed

against the Scooter. As a result, he fell down and sustained

injuries. Immediately he was shifted to Manipal Northside

Hospital, Bengaluru by the driver of the Car and other general

public, where he took treatment for a period of 10 days. The

claimant in the claim petition as well as in the evidence has

contended that the driver of the Car has assured that he would

meet medical expenses and also contended that the information

regarding accident was intimated to the police on the very same

day. The police had also told that the driver would meet the

medical expenses and hence, the case was not registered. When

the driver of the Car did not meet the medical expenses, he was

forced to lodge a complaint in the month of February 2010. The

police have investigated the matter and filed the charge sheet

against the driver. It is the contention of the claimant that he

had spent huge money for meeting the medical expenses. As a

result of the accident, he has suffered the permanent disability.

The claim petition was opposed by the Insurance Company by

filing a detailed statement of objections contending that the

vehicle has been falsely implicated in the case and there is a

delay of 10 months in lodging the complaint by the claimant

which has not been explained. Only in order to make wrongful

gain, the present claim petition is filed before the Court.

4. The claimant, in order to substantiate his claim,

examined himself as P.W.1 and also other witnesses as P.Ws.2,

3 and 4 and also got marked the documents Exs.P1 to P16. On

the other hand, learned counsel for the respondent-Insurance

Company examined one witness and got marked two documents

at Exs.R1 and R2. The Tribunal, after considering material

available on record, answered issued Nos.1 and 2 as negative

and dismissed the claim petition. Hence, the present appeal is

filed before this Court.

5. Learned counsel appearing for the appellant would

vehemently contend that the Tribunal has committed an error in

dismissing the claim petition of the claimant only on the

technical grounds. Learned counsel would vehemently contend

that the Tribunal has committed an error in disbelieving the

document at Ex.P2-the police intimation given to the police

immediately after the accident. The police have investigated the

matter and filed the charge sheet against the driver of the Car.

Learned counsel also would vehemently contend that the driver

of the vehicle admitted the guilt and pleaded before the Tribunal.

The evidence of the witnesses particularly P.Ws.1 and 4 has not

been rebutted by the Insurance Company by adducing any

evidence. Learned counsel also would vehemently contend that

there is no material before the Court to substantiate the fact that

the case has been registered against the driver of the Car in

collusion with the police and except examining R.W.1, nothing

has been placed before the Tribunal to come to the conclusion

that the claimant has not proved involvement of the vehicle in

the accident. The Tribunal failed to take note of all these factors

for the consideration while answering issue Nos.1 and 2 in the

negative. Hence, it requires interference of this Court.

6. Per contra, learned counsel appearing for the

respondent-Insurance Company would vehemently contend that

there is no any proper explanation by the claimant in lodging the

complaint after the lapse of 10 months after the accident. It is

also contended that in Ex.P2-the police intimation, the vehicle

number is not mentioned and to that effect also, the i.e., P.Ws.1

and 4 were cross-examined but no substantial evidence is placed

before the Court. P.W.4 is none other than a witness who has

been cited to show that he was an eye witness to the accident.

In the cross-examination, the truth has been elicited from the

mouth of P.W.4. In the absence of any documentary proof with

regard to the vehicle was involved in the accident, the Tribunal

has not committed any error in appreciating the evidence

available on record.

7. Learned counsel also brought to the notice of this

Court para Nos.11 to 14, wherein the Tribunal has made a

detailed discussion by coming to the conclusion that Ex.P2 has

not been proved and also the cross-examination of P.W.4 not

inspires the confidence of the Court in coming to the conclusion

that he was an eye witness to the accident. Hence, there is no

material to come to the other conclusion that the claimant has

proved the accident involving the vehicle in question.

8. Having heard the arguments of the learned counsel

for the appellant and learned counsel for respondent No.2-

Insurance Company and also on perusal of the records, the

points that would arise for the consideration of this Court are:-

(i) Whether the Tribunal has committed an error in answering issue Nos.1 and 2 as negative by dismissing the claim petition on the ground that the very involvement of the vehicle in the accident is doubtful?

(ii) What Order ?

Points No.1 and 2:-

9. Having heard the respective counsel and also on

perusal of the records, it is contended by the learned counsel for

the claimant that the police intimation was given to the police on

the very same day by the hospital. Learned counsel also

brought to the notice of this Court Ex.P2. On perusal of Ex.P2,

the intimation was given to the police and the same is dated

23.03.2009, wherein the place of the accident is mentioned as

"RTA at 11.30 a.m. on 23.03.2009 near 11th Cross,

Malleswaram", but the fact is that the vehicle number is not

mentioned in the said intimation. In the cross-examination of

P.Ws.1 and 4, they have categorically admitted that the said

document does not disclose the vehicle number. No doubt,

P.W.1, in his evidence made an attempt to explain the delay in

lodging the complaint stating that the owner of the vehicle had

assured to settle the medical bills and also deposed that the

police inspector also came and informed that the owner of the

vehicle intends to settle the issue. In the evidence of P.W.1,

nothing is mentioned as to the name of the police officer, who

came and informed the claimant about the settlement. It is also

important to note that in order to prove Ex.P2, the police officer

who had acknowledged the intimation has not been examined

before the Tribunal and also the name of the person, who came

and told that the owner would settle the medical bills has not

been mentioned.

10. On perusal of the Ex.P2, except narrating the

accident, nothing is mentioned with regard to the vehicle. Only

on 11.12.2010, for the first time, the vehicle number is

mentioned in the complaint which is marked as Ex.P3. Almost

for a period of 10 months, no such document had emerged and

none of the hospital records also disclose that this vehicle was

involved in the accident. The IMV report at Ex.P7 discloses that

no fresh damage is found on the vehicle due to the said impact.

No doubt, the accident had taken place on 23.03.2009 but the

IMV inspection was conducted on 20.02.2010 almost after a

period of 11 months.

11. It is the contention of the claimant that the driver of

the Car himself admitted him to the hospital. No doubt, P.W.4,

an eye witness says that the driver of the Car along with the

general public shifted him to the hospital. In order to

substantiate the contention of the claimant that P.W.4 and also

driver of the Car admitted the injured to the hospital, no

document is placed before the Court. All these factors are taken

note of by the Tribunal while considering the material on record

and discussed in detail at para No.14. In order to substantiate

the fact that this vehicle was involved in the accident in

question, no material is placed except the complaint lodged after

11 months of the accident. The delay in filing the complaint

after 11 months of the accident is also not properly explained

either by examining the police officer, who came to the hospital

and informed about the settlement or the owner of the vehicle,

who assured that he would meet the medical expenses. No

doubt the driver of the Car had pleaded guilty before the

Magistrate Court, but in order to prove the fact that the vehicle

was involved in the accident, no immediate documents are

forthcoming before the Court. When such being the facts and

circumstances, the very contention of the learned counsel for the

appellant that no material is before the Court with regard to the

implication of the vehicle, cannot be accepted. It is the duty of

the claimant to place the material before the Court at the first

instance itself in order to prove the involvement of the vehicle in

the accident.

12. No doubt, strictly the evidence is not applicable in

the motor vehicles accidents claim, but the claimant has to place

the material to inspire the confidence of the Tribunal to come to

the conclusion that this vehicle was involved in the accident.

First of all, the delay in lodging the complaint has not been

explained and in order to make the claim against the insured and

owner of the vehicle on the ground that the vehicle was involved

in the accident, no material is placed before the Court. In the

absence of any substantial material before the Court, this Court

cannot come to the other conclusion. The Tribunal also while

considering the material on record, particularly, the evidence of

P.W.4, has come to the conclusion that in order to prove the fact

that he was an eye witness to the accident and also that though

he claims that he had given complaint and letter to the police

with regard to the accident, nothing is placed before the Court.

First of all, no complaint was lodged immediately after the

accident, but the complaint was given after lapse of 11 months

of the accident in terms of Ex.P3. Under the circumstances, I do

not find any merit in the appeal to come to the other conclusion.

13. In view of the discussion made above, I pass the

following:-

ORDER

The appeal is hereby dismissed.

Sd/-

JUDGE

PYR