Peeraji S/O Kallappa Jorapur vs Shrinath S/O Narayan Sindra
2022 Latest Caselaw 1733 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 4 T H DAY OF FEBRUARY, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.21413/2010 (MV)

BET WEEN

PEERAJ I S/O KALLAPPA JORAPUR,
AGE: 61 YEARS,
OCC: LIQU OR BU SINESS,
R/O INDOOR, TQ: MU NDAGOD,
NOW RESID ING AT C /O ANNAPURNA,
W/O MAHESH B ILGIKAR
(MANIYAR CHAWL),
GANESH PETH, HU BBALLI.
                                          ...APPELLANT

(BY SRI S.N.B ANAKAR AND
 SRI M.B.GONDI, ADVOCATES)

AND

1.    SHRINATH S/O NARAYAN SINDRA,
      AGE: MAJOR, OCC: DRIVER,
      R/O KOPPA, INDOOR,
      TQ: MU NDAGOD, DIST: U .K.,
      DRIVER OF JE EP BEARING REG.
      NO.KA-31/ N- 1943.

2.    NARAYAN S/O YALLAPPA SHIMB RI,
      AGE: MAJOR, OCC: BUSINESS,
      R/O KOPPA, INDUR,
      TQ: MU NDAGOD, DIST : U .K.,
      OWNER OF JEEP BEARIN G REG.
      NO.KA-31/ N- 1943.

3.    THE NEW INDIA A SSURANCE COMPANY LIMITED,
      K.C.C. B UILDING, J.C.NAGAR,
      NOW IT IS MERGED IN DIV IS IONAL OFFICE,
                                  2




      THE NEW INDIA A SSURANCE CO.LTD.,
      SHRINATH COMPLEX , N.C.M.ROAD,
      HUBB ALLI.
                                                    ...RESPONDENTS

(BY SRI G.R.TU RAMARI, ADVOCATE FOR R1 AND R2;
 SRI S.S.KOLIWAD, ADVOCATE FOR R3)

      THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 21.11.2 009 PASS ED IN
MVC No.509/2006 ON THE F ILE OF THE PR INCIPAL CIVIL
JUDGE (SR.DN.) AND MOTOR ACCIDENT CLAIMS TRIB U NAL,
HU BB ALLI, DISMISS ING THE P ETIT ION FILED UNDER
SECTION 166 OF M.V.ACT.

     THIS APPEAL COM ING ON F OR F INAL HEAR IN G, THIS
DAY THE COU RT DELIVERED THE FOLLOW ING:

                             JUDGMENT

The instant appeal is filed by the claimant

challenging the judgment and award passed by the

Princip al Civil Judge (Sr.Dn.) and Motor Accid ent

Claims Tribunal, Hubb alli (hereinafter referred to as

the 'Tribunal', for brevity) in MVC No.509/2006 dated

21.11.2009.

2. The parties to this appeal are referred to by

their rankings assigned to them before the Tribunal

for the sake of convenience.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

The claimant allegedly suffered injuries in the

accident that had taken place on 26.06.2004 at about

18.00 hours near Maruthi Oni Cross, Indur, on

Mundgod-Kalaghatagi road. It is the case of the

claimant that he was waiting for a bus in the bus stop

and at that time, the 1 s t respondent who was the

driver of the jeep bearing registration No.KA-31/

N-1943 came from Nadukatta village and stopped his

jeep infront of the claimant who was waiting for the

bus and offered him a lift. Accordingly, the claimant

boarded the jeep bearing registration No.KA-31/

N-1943. The jeep was being driven in a rash and

negligent manner by its driver and the accident was

allegedly caused when another jeep bearing

registration No.KA-22/M-1930 which came from the

rear side of the jeep in which the claimant was

traveling dashed to the said jeep. In the said

accident, the claimant allegedly suffered grievous

injuries. The claimant allegedly took native treatment

initially for the injuries caused in the accident.

Subsequently he got admitted in KIMS Hospital,

Hubballi on 04.08.2004 wherein he was treated as an

inpatient for the injuries sustained by him. A

complaint was lodged with regard to the said accident

by the daughter of the complainant on 13.08.2004

and based on such complaint, FIR was registered

against the drivers of both the jeeps which were

involved in the accident. The claimant had

thereafterwards filed a claim petition before the

Tribunal under Section 166 of the Motor Vehicles Act,

1988 (for short, the 'Act') claiming compensation

from the driver, owner and insurer of the jeep

bearing registration No.KA-31/N-1943. The tribunal

vide its judgment and award dated 21.11.2009 has

dismissed the claim petition on the ground that the

claimant had failed to prove that he had suffered

injuries in the accident that had taken place on

26.06.2004 wherein the jeep bearing registration

No.KA-31/ N-1943 was involved. Being aggrieved by

the same, the claimant is before this Court.

4. Learned counsel for the claimant submits

that the owner and driver of the offending vehicle

have not disputed the accident in question and

therefore, the Tribunal was not justified in dismissing

the claim petition. He refers to Ex.P5/discharge card

of the claimant and submits that the said document

would go to show that the injuries suffered were in a

road traffic accident and therefore the Tribunal ought

to have entertained the claim petition and awarded

compensation to the injuries suffered by the claimant

in the road traffic accident that had taken place on

26.06.2004.

5. Per contra, learned counsel appearing for

the insurer submits that the Tribunal is justified in

dismissing the claim petition having regard to the

fact that the claimant had failed to prove that he had

suffered injuries in the accident in question wherein

the offending jeep which was insured with the 3 r d

respondent-insurer was involved. He therefore prays

to dismiss the appeal.

6. I have carefully considered the arguments

addressed on both sides and also perused the

material available on record.

7. The claimant had approached the Tribunal

under Section 166 of the Act and in the said petition,

he has stated that on 26.06.2004, he had boarded

the offending jeep bearing registration No.KA-31/

N-1943 and when the said vehicle reached near

Harijankeri at Indur cross, the jeep was stopped and

respondent No.1 driver asked the claimant to get

down from the jeep and even before the claimant

could get down from the jeep, he moved the vehicle

in a rash and negligent manner and as a result, the

claimant fell down from the jeep and sustained

injuries. A complaint had been lodged by the

daughter of the claimant on his instructions, wherein

it is averred that the accident was caused as a result

of the rash and negligent driving of the drivers of two

jeeps and having regard to the averments made in

the said complaint, FIR was registered as against the

drivers of two jeeps bearing registration No.KA-31/N-

1943 and KA-22/M-1930. In the claim petition, the

involvement of the other jeep in the accident is not

at all mentioned. Further the claimant has only

produced copy of the FIR which is registered against

the drivers of aforesaid two jeeps, but he has not

produced the copy of the charge sheet filed by the

police.

8. The material on record would go to show

that though the accident is said to have been taken

place on 26.06.2004 in which allegedly the claimant

suffered injuries, he was admitted to KIMS Hospital,

Hubballi for the first time on 04.08.2004. Though an

explanation has been given by the claimant that he

was taking native treatment for the injuries

considering the fact that he had suffered two fracture

injuries, it is difficult to believe that he was being

treated natively for the fracture injuries and he had

stayed home for more than a month having suffered

two fracture injuries. Further even the hospital

records wherein the claimant was admitted for the

period from 04.08.2004 till 21.09.2004 do not show

that he has given the history of the injuries sustained

by him as a result of the road traffic accident.

Admittedly the claimant has not examined the

doctors who have treated him in KIMS Hospital,

Hubballi. PW2-Doctor who has been examined before

the Tribunal is not a doctor who has treated him.

PW.2has admitted during the course of his cross-

examination that he has issued the disability

certificate on the basis of the medical records

available with the claimant. Ex.P5 is a discharge card

and though the date of admission and date of

discharge of the claimant is mentioned in the said

document, the date of the said document is not

mentioned. Ex.P4 is also the patient discharge card

issued from the very same hospital and the name of

the doctor who has issued the same is mentioned in

the said document whereas in Ex.P5, the name of the

doctor who has issued the same is not mentioned. In

Ex.P4, it is not mentioned that the injuries sustained

by the claimant was as a result of the road traffic

accident whereas for the first time in Ex.P5, it has

been mentioned the injuries were as a result of the

road traffic accident. However having regard to the

discrepancy in Exs.P4 and P5, considering the fact

that the name of the author of the said document is

not found in Ex.P5 and also considering the fact that

the said document does not bear date, it is difficult

to place reliance on the said document. The other

medical records which are available on the file would

all go to show that there is no mention in any of the

said documents that the injuries suffered by the

claimant was as a result of a road traffic accident.

Except the FIR, which a lodged belatedly the claimant

has not produced any material before the Tribunal to

show that the injury suffered by him was as a result

of the road traffic accident that had taken place on

26.06.2004. It is not forthcoming from the records as

to what has happened to the FIR which was

registered as against the two drivers of the jeeps

which were allegedly involved in the accident.

9. Under the circumstances, the Tribunal was

fully justified in dismissing the claim petition on the

ground that the claimant had failed to prove that he

had suffered injuries in the alleged road traffic

accident that had taken place on 26.06.2004 in which

the offending jeep bearing registration No.KA-31/N-

1943 insured by the 3 r d respondent was involved. I

find no illegality or irregularity in the said judgment

and award passed by the Tribunal and therefore there

is no merit in this appeal. Accordingly the same is

dismissed.

Sd/-

JUDGE

CLK