Jaganath S/O Shettu Lamani @ ... vs Desu And Anr
2021 Latest Caselaw 3389 Kant

           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 24TH DAY OF SEPTEMBER 2021

                          PRESENT

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                             AND

           THE HON'BLE MS. JUSTICE J.M.KHAZI


 MISCELLANEOUS FIRST APPEAL No.201555/2019 (MV)

BETWEEN:

JAGANNATH
S/O SHETTU LAMANI @ RATHOD
AGE: 74 YEARS
OCC: RETD. TEACHER/AGRICULTURE
R/O SHIVANGI, L.T.,
TQ. & DIST. VIJAYPUR-586101
                                            ... APPELLANT
(BY SRI KOUJALAGI C.L., ADVOCATE)

AND:

1.     DESU S/O RUPASING RATHOD
       R/O SHIVANAGI
       TQ. & DIST. VIJAYPUR-586101

2.     THE BRANCH MANAGER
       NATIONAL INSURANCE COMPANY LTD.,
       S.S.TEMPLE, BACKSIDE
       DIST. VIJAYAPURA-586101
                                          ... RESPONDENTS
(SERVED)
                                                           MFA No.201555/2019
                                       2


      THIS    MISCELLANEOUS           FIRST    APPEAL      IS   FILED        UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 15.03.2019 PASSED IN
MVC NO.1695/2015 BY THE COURT OF I-ADDITIONAL SENIOR CIVIL
JUDGE AND MEMBER OF MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VI,
VIJAYPUR AT VIJAYPUR AND ALLOW THIS APPEAL TO GRANT THE
COMPENSATION         OF     `22,00,000/-    ONLY    AS     CLAIMED      BY     THE
APPELLANT.


      THIS    MISCELLANEOUS           FIRST   APPEAL       COMING       ON     FOR
ADMISSION, THROUGH PHYSICAL HEARING/VIDEO CONFERENCE,
THIS DAY Dr.H.B.PRABHAKARA SASTRY J., DELIVERED THE
FOLLOWING:


                                   JUDGMENT

This is claimant's appeal whose claim petition under

Section 166 of the Motor Vehicles Act, 1988, (hereinafter for

brevity referred to as 'M.V. Act') for compensation of

`22,00,000/- towards injuries alleged to have been sustained

by him in the road traffic accident came to be dismissed by I-

Additional Senior Civil Judge and Motor Accident Claims

Tribunal-VI, Vijaypur (hereinafter for brevity referred to as

'Tribunal') vide its judgment dated 15.03.2019 in MVC

No.1695/2015.

MFA No.201555/2019

2. Respondent Nos.1 and 2 though served have

remained absent.

3. Heard the submission of the learned counsel for the

appellant on admission.

4. Perused the material placed before this Court.

5. The summary of the case of the claimant in the

Tribunal is that on 06.10.2015 at about 10.10 hours while he

was going as pillion rider in a motorcycle bearing registration

No.KA-28/EC-7363 from a place called Shivanagi L.T., towards

Shivanagi village, another motorcycle bearing registration

No.KA-28/EJ-6933 being ridden by its rider in a rash and

negligent manner came from behind and dashed to it. Due to

which road traffic accident, he (claimant) sustained multiple

injuries all over his body. He was taken to Sparsh Hospital,

Vijaypur and from there to a hospital at Miraj. He was an

inpatient for about 13 days and incurred medical expenses of

`2,50,000/-. He further requires a sum of `1,00,000/- towards

his future medical expenses. He contended that the accident

has taken place due to rash and negligent riding of the

offending motorcycle bearing registration No.KA-28/EJ-6933 by MFA No.201555/2019

its rider. He further stated that he is a retired government

servant and also an agriculturist and due to the accident, he

has suffered disability.

6. In response, the respondents appeared through

their counsel and filed their written statement. Respondent

No.1 in the Tribunal admitted that he is the owner of the

motorcycle bearing registration No.KA-28/EJ-6933 and did not

deny the alleged accident however, he stated that the claim

petition is not maintainable for non-joinder of owner of the

motorcycle and the insurer of the motorcycle upon which

motorcycle the claimant was said to be going as a pillion rider.

Respondent No.1 further contended that in case the Tribunal

comes to a conclusion that the respondents are liable, then

respondent No.2 which is the insurance company is liable to pay

compensation.

Respondent No.2 in the Tribunal in its written statement

denied all the averments of the claim petition and specifically

contended that though the alleged offending motorcycle bearing

registration No.KA-28/EJ-6933 is insured under it, however, the

owner of the said vehicle colluded with the claimant as such, MFA No.201555/2019

said motorcycle bearing registration No.KA-28/EJ-6933 is

falsely implanted in the matter belatedly. It also contended

that there is violation of policy conditions and the rider of the

motorcycle had no valid driving licence. Apart from denying the

alleged injuries and disability of the claimant, it also denied its

liability towards the claimant.

7. Based upon the pleadings of the parties, the

Tribunal framed the following issues:

i. "Whether petitioner proves that he sustained injuries in the road accident which occurred on 06.10.2015 at about 10-10 hours, Shivanagi to Shivanagi Tanda road, near Shivanagi 30 Km away from Vijaypur Rural P.S., due to the negligent riding of the rider of Motor cycle bearing Reg.No.KA-28/EJ-6933?

ii. Whether the petitioner proves that he is entitled for the compensation? If so? To what extent and from whom he is entitled?

iii. What order or award?"

8. The claimant got himself examined as PW.1 and got

examined his son who was said to be the rider of motorcycle as MFA No.201555/2019

PW.2 and got marked the documents from Exs.P1 to P10. On

behalf of the respondents, copy of the insurance policy was

marked as Ex.R1.

9. After hearing both side, the Tribunal while

answering issue No.1 in the negative dismissed the claim

petition of the claimant vide its judgment dated 15.03.2019. It

is challenging the said judgment, the claimant in the Tribunal

has preferred this appeal.

10. The learned counsel for the appellant in his single

sentence argument submitted that the Tribunal has dismissed

the claim petition only on the ground of delay in filing the

complaint however, there are large number of decisions which

holds that mere delay would not be a ground for dismissing the

claim petition.

11. A perusal of the material placed before us including

the impugned judgment would go to show that according to the

claimant, the alleged road traffic accident in question was

occurred on 06.10.2015 in the morning hours, whereas the

complaint with respect to the said road traffic accident as per

Ex.P2 was lodged only on 14.11.2015, which was after thirty MFA No.201555/2019

nine days from the date of accident. No doubt, mere delay in

filing the complaint in a road traffic accident would not make

the claimant ineligible for claiming compensation under Section

166 of the M.V. Act, however, the said delay also plays an

important role in ascertaining as to the genuinity of the claim.

12. In the instant case, even according to the claimant

and the evidence of PWs.1 and 2, it is only claimant who was

examined as PW.1 was shown to be injured in the accident.

PW.2 who claims to be an eyewitness to the alleged road traffic

accident and who claims to be the rider of the motorcycle upon

which the injured was said to have been travelling has

specifically stated that he did not sustain any injuries in the

accident. On the contrary, he himself shifted his father to the

hospital, that means, being the son of the injured and the

person unhurt in the road traffic accident he could have lodged

complaint at the earliest, but he did not choose to do it.

Secondly, even according to PWs.1 and 2, all the children

of PW.1 had already visited the hospital and attended to PW.1

within two days of the accident, that means, information about

the accident had reached all the kith and kin of the claimant MFA No.201555/2019

without any delay and he was also being attended to by all his

family members and relatives. Inspite of the same, none of

them have evinced any interest in lodging the complaint with

respect to the alleged road traffic accident.

Thirdly, no medico-legal case report (MLC) was submitted

by either of hospital authorities i.e., Sparsh Hospital, Vijaypur,

or Dr.G.S.Kulkarni Hospital, Miraj, to the police intimating them

about the road traffic accident.

Fourthly, even according to the claimant, the motorcycle

upon which the claimant was said to have been travelling as

pillion rider was without any insurance, probably for the said

reason, the claimant choose not to implead that motorcycle

which was also part of the road traffic accident and also for the

reason that the rider of the motorcycle was none-else than his

son.

Fifthly, as observed in the impugned judgment and as

mentioned in the Motor Vehicle Inspection Report at Ex.P7,

front portions of both motorcycles were found damaged. Had

accident really been happened in the manner as depicted by the

claimant, any damage to the claimant's motorcycle should have MFA No.201555/2019

been on its rear side but not on its front side, it is because

according to the claimant, offending motorcycle came from

behind and dashed to the back side of the motorcycle upon

which the claimant was said to be travelling.

Lastly, even according to PW.1, at the time of the

accident he did not know the details of the alleged offending

motorcycle or its owner, it is only through some unknown

person he came to know that the alleged offending motorcycle

was said to be belonging to respondent No.1 in the Tribunal.

This also leads to further doubt and leads one to believe that

the enormous delay caused in lodging the complaint and taking

further steps in that regard was only to find some insured

vehicle to fix it in a matter to claim compensation.

13. It is rightly observing so, the Tribunal since has

rejected the claim of the claimant, we do not find any grounds

to admit the present appeal.

Accordingly, the appeal stands dismissed as devoid of

merits for admission.

MFA No.201555/2019

Registry to transmit a copy of this judgment to the

concerned Tribunal without any delay.

Sd/-

JUDGE

Sd/-

JUDGE

NB*