Chikkanna vs M/S Reliance Gen. Insurance Co. ...
2021 Latest Caselaw 2169 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 9TH DAY OF JUNE, 2021

                          BEFORE

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

                  M.F.A.NO.9370/2013 (MV)

BETWEEN:

CHIKKANNA,
S/O LATE NARAYANAPPA,
AGED ABOUT 54 YEARS,
R/AT NO.263,2ND FLOOR,
2ND CROSS, C T BED, T R NAGAR,
BENGALURU-70.                                    ... APPELLANT

              (BY SMT. P.V. KALPANA, ADVOCATE)

AND:

1.     M/S RELIANCE GEN. INSURANCE CO. LTD.,
       EAST WING 5TH FLOOR NO.28,
       CENTENARY BUILDING,
       M.G.ROAD, BENGALURU-01.

2.     SRI SURESH M,
       S/O MUNIVENKATAPPA,
       AGE: MAJOR,
       R/A NARASAPURA,
       KOLAR DISTRICT-563 101.              ... RESPONDENTS

           (BY SRI H.C. BETSUR, ADVOCATE FOR R-1;
     VIDE COURT ORDER DATED 07.08.2019, NOTICE TO R-2
                     IS DISPENSED WITH)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.03.2013
PASSED IN MVC.NO.7127/2009 ON THE FILE OF THE III
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ADDITIONAL  SENIOR   CIVIL  JUDGE,   MEMBER,   MACT,
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 this matter is listed for admission today, with the

consent of both the learned counsel it is taken up for final

disposal.

2. This appeal is filed challenging the judgment and

award dated 11.03.2013 passed in M.V.C.No.7127/2009 on the

file of the III Additional Senior Civil Judge and MACT, Bengaluru

('the Tribunal' for short) questioning the dismissal of the claim

petition answering issue No.1 as negative.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

4. The factual matrix of the case is that on 26.04.2009

at about 11.00 a.m. when the petitioner was going on motor

cycle bearing registration No.KA-53-E-8747 as a pillion rider,

near Shivanna's land, Nandagudi, Bandahalli, Hethakku Road,

Hosakote Taluk, the driver of the auto rickshaw bearing

registration No.KA-07-7993 drove the same in a rash and

negligent manner and dashed against the motor cycle. Due to

which, the petitioner fell down and sustained simple as well as

grievous injuries. Immediately he was shifted to hospital and

took treatment at the first instance from 26.04.2009 to

02.05.2009 and again from 08.05.2009 to 17.05.2009. The

claimant contended that on account of the accidental injuries, he

has suffered permanent disability.

5. The Insurance Company appeared through its

counsel and filed the written statement denying the averments

and issuance of insurance policy and also contended that there

was a delay of 54 days in lodging the complaint. It is also

contended that actually one Sri Ramamurthy was the driver of

the auto rickshaw, but after thought, the vehicle number was

changed by giving further statement. Further, one Chandra was

falsely shown in the charge-sheet as the driver of the auto

rickshaw. Even the date in the seizure mahazar of offending

vehicle was tampered as 25 and hence the Company is not liable

to pay the compensation and the accident and involvement of

the vehicle is doubtful.

6. The claimant in order to substantiate his claim

examined himself as P.W.1 and also examined P.W.2 and P.W.3

doctor and got marked the documents at Exs.P.1 to 13. On the

other hand, the respondents examined one witness as R.W.1 and

got marked the documents at Exs.R1 to 3. The Tribunal after

considering both oral and documentary evidence placed on

record, dismissed the claim petition answering issue No.1 as

negative in coming to the conclusion that the very involvement

of the vehicle in the accident is doubtful.

7. Being aggrieved by the judgment and award of the

Tribunal, the present appeal is filed by the claimant contending

that the Investigating Officer after the investigation has filed the

charge-sheet against the driver of the alleged vehicle. Inspite of

substantive material placed before the Court, the Tribunal has

committed an error in coming to the conclusion that the very

involvement of the vehicle in the accident is doubtful. The

Tribunal has not appreciated the material on record. Even

though R.W.1 has been examined, nothing is placed on record to

come to conclusion that the vehicle was not involved in the

accident. Mere denial of the involvement of the vehicle in the

accident is not sufficient to dismiss the case. The Insurance

Company has not proved the defence. Hence, the Tribunal

committed an error.

8. The learned counsel would contend that the further

statement of the complainant was recorded on 20.06.2009 and

the complaint was given on 19.06.2009 by one Sri Srinivas who

committed the mistake in mentioning the vehicle number and

the name of the driver of the auto rickshaw. The further

statement of the claimant has not been considered by the

Tribunal. The Investigating Officer has investigated the matter

and filed the charge-sheet against Sri Chandra in respect of the

vehicle bearing No.KA-07-7993. The Tribunal failed to consider

all the material and erroneous comes to the conclusion that the

very involvement of the vehicle in the accident is doubtful.

9. Per contra, the learned counsel for the respondent

Insurance Company would submit that the accident was occurred

on 26.04.2009 and no doubt in the hospital records involvement

of two vehicles i.e., two wheeler and auto rickshaw was

mentioned, but no details of the auto rickshaw was given. The

learned counsel would also submit that the injured was

discharged from the hospital even when he has taken treatment

twice on 17.05.2009 and the complaint was given after one

month two days and there was a delay of 53 days in filing the

complaint. Even while filing the complaint by one Sri Srinivas,

the name of the driver of the auto rickshaw was mentioned as

Sri Ramamurthy and the claimant is relying upon the further

statement of the claimant and there is no explanation as to what

prevented him from lodging the complaint after the discharge.

Though the claimant claims that the owner came and expressed

his desire to settle the matter, the same has not been

substantiated and not examined any panchayatdars who

participated in the said panchayat.

10. The learned counsel would contend that while filing

the charge-sheet, one driver Sri Chandra and the present vehicle

was implicated. All these discrepancies are considered by the

Tribunal and rightly comes to the conclusion that the

involvement of the vehicle in question in the accident is doubtful

and hence there is no merit in the appeal.

11. Having heard the arguments of the learned counsel

for the appellant and the learned counsel for respondent No.1,

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

(i) Whether the Tribunal has committed an error in answering issue No.1 as negative in coming to the conclusion that the very involvement of the vehicle in question in the accident is doubtful and whether it requires interference of this Court?

(ii) What order?

12. It is not in dispute that the accident was taken place

on 26.04.2009. On perusal of the medical records - case diary

discloses that on the very same day the injured was shifted to

the hospital and he was an inpatient at the first instance till

02.05.2009 and thereafter he was again admitted on 08.05.2009

and discharged on 17.05.2009. It has to be noted that when he

was admitted to the hospital, it is mentioned as history of road

traffic accident, but hospital authorities have not given any

intimation in respect of the accident. No doubt, due to the

mistake on the part of the hospital authorities, the claimant who

has sustained the injuries should not suffer. But when he was

discharged from the hospital on 17.05.2009, no complaint was

given till 19.06.2009. The complaint was given by one Sri

Srinivas and in the complaint he has mentioned the vehicle

number as No.KA-07-7339 wherein he has mentioned the name

of the driver of the auto rickshaw as Sri Ramamurthy.

13. No doubt, the Investigating Officer has recorded the

further statement of the injured on 20.06.2009 and in the said

further statement, the vehicle number is mentioned as No.KA-

07-7993. The police after the investigation have filed the

charge-sheet against one Sri Chandra and implicated the vehicle

bearing No.KA-07-7993. These are the discrepancies which

have not been explained by the claimant and what made him not

to give any complaint after the discharge also has not been

explained. Though it is contended that panchayat was held and

the owner had assured him to meet the expenses, the same has

not been substantiated. When the accident was occurred on

26.04.2009 and he was at the first instance discharged on

02.05.2009, the theory of the owner came and approached for

compromise cannot be accepted. No approach was made by the

owner at the time of the discharge at the first instance and also

at the time of second admission and discharge and nothing has

been placed before the Court that during the hospitalization the

owner came and assured him for compromise. After lapse of

one month of the discharge, the complaint was given indicating

different vehicle number and also different driver and

subsequently the Investigating Officer recorded the further

statement of the claimant and filed charge sheet in respect of

different vehicle and different accused.

14. First of all, there was no entry in the hospital records

with regard to the vehicle number when the injured was taken to

the hospital both at the time of first admission and second

admission. An attempt is made to explain the delay and the

same has not been substantiated. There are discrepancies in the

complaint given by Sri Srinivas with regard to vehicle number

and name of the driver. Subsequently, different vehicle number

was implicated and different accused was arraigned while filing

the charge-sheet and these are the discrepancies apparent on

record. When such being the case, the Tribunal has not

committed any error in coming to the conclusion that the

claimant has not proved the involvement of the vehicle in

question in the accident. In the absence of the substantive

material before the Court, this Court cannot come to a other

conclusion. No doubt, R.W.1 has been examined before the

Tribunal and no other witnesses have been examined and both

the claimant as well as the Insurance Company have not

examined the Investigating Officer who investigated the matter

and filed the charge-sheet. All the documents came into

existence after two months of the accident and it is the duty cast

upon the claimant to substantiate his claim placing the material

that this particular vehicle which is in question was involved in

the accident and in order to substantiate the same, no material

is found on record even after examining the documents

meticulously. Hence, I do not find any merit in the appeal to

come to a other conclusion and set aside the finding of the Trial

Court answering issue No.1 as negative. Hence, the point No.1

is answered as negative.

15. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE MD