Sri Guru Raj vs Jayamala B
2022 Latest Caselaw 2259 Kant

                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11th DAY OF FEBRUARY 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

             MFA No. 10739 OF 2011 (MV)

BETWEEN
SRI GURU RAJ
AGED ABOUT 44 YEARS,
S/O THANDAVA MURTHY,
NANJANGUD TOWN,
MYSORE
                                     ... APPELLANT

(BY SRI M.S. NAGARAJ, ADVOCATE)

AND
1.     JAYAMALA B
       AGED ABOUT 34 YEARS,
       S/O BELAPPA,
       R/AT NO.904,
       SETHAVELAS ROAD,
       MYSORE.


2.     THE DIVISIONAL MANAGER
       ORIENTAL INSURANCE COMPANY LTD
       D.O.I. TEJUS COMPLEX,
       P.B. 27, CSI,
       SAYYAJI RAO ROAD,
       MYSORE
                                    ...RESPONDENTS
                          2


(BY SRI H.P. VEERABHADRA SWAMY, ADVOCATE FOR R-1
    SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R-2)

      THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
5.01.2011 PASSED IN MVC NO.93/2009 ON THE FILE OF
THE SENIOR CIVIL JUDGE & MACT, NANJANGUD.
DISMISSING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

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


                    JUDGMENT

This appeal is at the instance of the claimant

calling in question the correctness of the judgment

and award dated 05.01.2011 in MVC No.93/2009 on

the file of learned Senior Civil Judge and MACT,

Nanjangud.

2. It is the case of the claimant that on

08.12.2008 at about 09.00 p.m., after finishing his

work in Gundlupet, he was walking by the side of the

road with his friend near Chikkatapura and at that

time, the rider of the motor cycle bearing registration

No. KA-09 EB-1638 owned by respondent No.1-

Jayamala and insured with respondent No.2-insurance

company came in a rash and negligent manner riding

the said motor cycle and dashed against the

claimant-appellant from behind causing serious

injuries to him.

3. Before the learned Tribunal, both

respondent No.1 and respondent No.2 contested the

said proceedings by filing their separate written

statement.

4. During the trial, the claimant examined

himself as PW-1 and got marked as EX.P1 to Ex.P42.

The respondent examined one of the officials of the

insurance company as RW-1 and Ex.R1 and R2 were

marked.

5. After hearing the learned counsel on both

sides and on perusing the records, the learned

Tribunal dismissed the claim petition.

6. It is urged on behalf of the appellant that

the learned Tribunal has dismissed the claim petition

without appreciating the evidence in a proper manner.

It is contended that the claimant was treated as in-

patient for a period of 53 days in KR Hospital and

Kamakshi Hospital and therefore the claim petition

ought to have been allowed by awarding a suitable

compensation.

7. Learned counsel for the respondent-

insurance company, per contra, contended that a false

case has been foisted against the insured motor cycle

and learned Tribunal after considering the evidence

placed on record has dismissed the claim petition and

there is no good ground to allow the appeal and

accordingly it is liable to be dismissed.

8. I have given anxious consideration to the

rival contentions and I have carefully perused the

records.

9. The case put forth by the claimant before

the learned Tribunal is that on 08.12.2008 at 09.00

p.m., while he was walking by the side of the road

near Chikkatapura with his friend, the motor cycle

bearing registration No. KA-09 EB-1638 came from

behind and dashed against him resulting in injuries.

The learned Tribunal has noticed the fact that even

though the accident is said to have occurred on

08.12.2008, the complaint came to be lodged only on

02.01.2009 i.e., after a delay of 25 days. The

complainant is none other than friend who was

allegedly with the claimant at the time of the accident.

The said complainant has not been examined by the

claimant in support of his case even though he is said

to be an eye witness.

10. A perusal of the records disclosed that for

the first time, history of the injury was given to the

hospital on 25.12.2008 stating that a motorist had

caused the accident. Even in the said history given

after about 17 days, neither the registration number

of the vehicle nor the fact that it was the motor cycle

which had caused the accident was not given to the

hospital. The time of the accident is stated to be

09.00 p.m. and according to the claimant, a motor

cycle had hit him from behind. The conspectus of

facts namely, that the alleged eye

witness/complainant has not been examined and after

17 days of the alleged incident, the only history given

was that a motorist had caused the accident without

giving any further details including the registration

number of the offending vehicle, shows the strong

probability of the claimant having not noticed the

vehicle had hit him, if at all the accident had taken

place in the manner alleged by him.

11. Learned Tribunal upon consideration of the

entire circumstances has refused to go by the charge

sheet (Ex.P7) filed against the rider of the motor

cycle. I do not find any infirmity in the finding of

other learned Tribunal to the effect that the accident

as alleged involving the motor cycle bearing

registration No. KA-04 EB-1638 has not been proved

and accordingly I do not find any merits in this appeal.

Accordingly, I proceed to pass the following:

ORDER

The appeal is dismissed.

Registry to transmit the trial Court records to the

concerned trial Court forthwith.

Sd/-

JUDGE

mbb