Karnataka High Court

K S Madhusudana vs The United India Insurance Co Ltd on 3 January, 2022

Bench: Ravi V Hosmani

        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 3RD DAY OF JANUARY, 2022

                              BEFORE

         THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                 M.F.A.NO.8255 OF 2019 (MV-I)

BETWEEN:

K.S.MADHUSUDANA
S/O SUBBANNA
AGED ABOUT 28 YEARS
R/O KAMAGONDANAHALLI
SIRA TALUK-572 137
TUMAKURU DISTRICT.                            ...APPELLANT

[BY SRI V.B.SIDDARAMAIAH., ADVOCATE (PH)]


AND:

1.     THE UNITED INDIA INSURANCE CO. LTD.,
       1ST FLOOR, RAJA COMPLEX
       DR. AMBEDKAR ROAD
       SIRA TOWN-572 137
       TUMAKURU DISTRICT
       REP. BY ITS BRANCH MANAGER.

2.     SRI RAMESH K.N.
       S/O NAGARAJU K.N.
       AGED ABOUT 46 YEARS
       R/O KAMAGONDANAHALLI
       SIRA TALUK - 572 137
       TUMAKURU DISTRICT.              ...RESPONDENTS

[BY SRI. P.B.RAJU, ADVOCATE FOR R1 (VC);
    SRI S.RAJU, ADVOCATE FOR R2]
                                  2




      THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT PRAYING
AGAINST THE JUDGMENT AND AWARD DATED 17.07.2019 PASSED IN
MVC NO.181/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC
AND ADDITIONAL MACT, SIRA, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.


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


                             JUDGMENT

Challenging judgment and award dated 17.07.2019 passed by

Senior Civil Judge and Additional M.A.C.T at Sira (hereinafter

referred to as 'tribunal' for short ) in MVC No. 181/2018, claimant

has preferred this appeal.

2. Brief facts as stated are that on 03.11.2017, claimant

aged about 27 years was proceeding on motorcycle bearing

registration no. KA-06-EA-0055 on Sira - Pattanayakanahalli road,

when Harish riding it in rash and negligent manner, it capsized,

they fell down and sustained grievous injuries. Immediately, he was

shifted to Government hospital, Tumakuru, thereafter to NIMHANS

Hospital, Bangalore and to Sanjay Gandhi Hospital, Bangalore and

thereafter he was admitted to Government Hospital, Sira. He took

treatment for three months and underwent Surgery for internal

fixation. Prior to accident, he was running barber shop and earning

25,000/- p.m. But due to accidental injuries, his earning was

reduced. He filed claim petition under Section 166 of Motor Vehicles

Act, 1988 against owner and insurer of motorcycle.

3. Despite service of notice, respondent no.1 - owner did not

appear and contest the matter. He was placed ex-parte.

Respondent No.2 - insurer filed objections opposing claim petition

on all counts. It was specifically contended that accident occurred

due to rash and negligent riding of motorcycle. Delay of eight days

in lodging complaint was not properly explained. Therefore, there

was false implication of insured vehicle. Claim petition was also

opposed as being excessive and exorbitant.

4. Based on pleadings, tribunal framed following issues:-

1. Whether the petitioner proves that on 03.11.2017 at about 8.00 p.m., When he along with his friend by name Harish were proceeding on the Hero Honda Splendor motorcycle bearing Reg. No. KA.06.EA.0055 and the above said Harish was riding the motorcycle and petitioner was seated as a pillion rider on Sira -

Pattanayakanahalli road and when they reached near Uganakatte gate, at that time, the above said Harish was rode the motorcycle in a rash and negligent manner and toppled the motorcycle on the right said of the road and as a result of it, the petitioner fell down from the motorcycle and has sustained bodily injuries?

           2. Whether the petitioner is entitled              for
           compensation? If so, what rate, from whom?


           3. What order or award?

                Addl.Issue No.1

1. Whether respondent No.2 is entitled to be discharged from the liability to indemnify the petitioner on the grounds urged in the written statement?

5. In support of his case, claimant examined himself as PW.1

and Dr. Prakashappa as PW.2. Exhibits Ex.P1 to Ex.P.15 were

marked. Insurer examined its Asst Manager as RW.1. Dr. Rajkumar,

Medical officer, Government Hospital, Sira, was examined as CW1.

Exhibits R.1 to R.5 were marked.

6. On Consideration, tribunal answered issue no.1 in

negative, additional issue no.1 in affirmative, issue no.2 as not

surviving for consideration and issue no.3 dismissing claim petition.

Being aggrieved by same, claimant has filed this appeal.

7. Sri V.B. Siddaramaiah, learned Counsel appearing for

claimant contended that judgment and award passed by tribunal

was contrary to facts and evidence on record. It was submitted that

wound certificate issued by Government Hospital Sira, clearly

disclosed that claimant sustained injuries due to road traffic

accident. He further submitted that FIR and charge sheet were filed

against rider of motorcycle not challenged by rider or owner.

However, relying only upon MLC register extract - Ex.R.5, tribunal

disbelieved claimant's case and dismissed claim petition. As there is

no proper consideration of material on record, impugned award was

liable for interference.

8. On the other hand, Sri S.Raju, learned counsel appearing

for respondent no.2 supported award and opposed appeal. It was

submitted that immediately after accident, claimant was admitted

to Government hospital Sira. Ex.P.6 - wound certificate issued by

said hospital indicates that claimant was examined at 8.50 PM on

03.11.2017. The injuries noted were fracture of right supra

condyler distal of femur, fracture of right clavicle and contusion

over left temporal region. Claimant was conscious. Despite same,

complaint is filed after 9 days without stating convincing reasons for

delay. Claimant failed to examine either any eye witness or

investigating officer to establish occurrence of accident. Therefore,

tribunal had rightly dismissed claim petition after due appreciation

of evidence on record. Hence, no interference was called for.

9. Heard learned counsel on both sides, perused impugned

judgment and award and record.

10. From the same, very occurrence of accident and claimant

sustaining injuries is in dispute. While, claimant relies upon

complaint, FIR and charge sheet to contend that accident occurred

due to rash and negligent riding of motorcycle by its rider and

claimant sustained injuries in such accident, insurer is contending

that no such accident occurred involving insured vehicle. Tribunal

disbelieved claimant's version and dismissed claim petition, which is

assailed in this appeal. Therefore, points that arise for consideration

herein are:

            i)      Whether    tribunal    was   justified    in
            dismissing claim petition?


            ii)      Whether    claimant    is   entitled    for
            compensation?
Point no.1:

11. In order to establish accident, claimant produced FIR,

complaint, charge sheet, mahazar, wound certificate and Motor

vehicle inspector's report. From perusal of Ex.P.2 - complaint, it is

seen that complaint is given by brother of claimant. Accident

occurred on 03.11.2017 at 8.00 PM. Whereas, complaint is given on

12.11.2017 at 6.15 PM. Though, immediately after accident,

claimant was taken to hospital, complainant was informed about

accident on the same day. As per Ex.P.6 - wound certificate and

treatment records, claimant was conscious. Nothing prevented

either claimant or complainant to lodge complaint immediately.

Complaint lodged after 9 days cannot be free from suspicion.

Claimant has not examined rider of motorcycle or his brother or