Ashok Ishwarappa Jyoti vs Jalil Ahammad Basir Sakali
2022 Latest Caselaw 10454 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

       DATED THIS THE 7th DAY OF JULY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

            MFA.NO.100235/2014 (MV-I)

BETWEEN

SHRI ASHOK ISHWARAPPA JYOTI,
AGE: 61 YEARS, OCC: NIL,
R/O: HALASHI, TQ: KHANAPUR,
DIST: BELGAUM.
                                         ....APPELLANT
(BY SRI SANJAY S. KATAGERI, ADVOCATE)

AND

1.    SHRI JALIL AHAMMAD BASIR SAKALI,
      AGE: MAJOR, OCC: DRIVER,
      T/O NANDAGAD, TQ: KHANAPUR,
      DIST: BELGAUM.

2.    THE CHAIRMAN,
      KHANAPUR T.A.P.C.M.S. LTD.,
      NANDAGAD, TQ: KHANAPUR,
      DIST: BELGAUM.

3.    THE ORIENTAL INSURANCE CO. LTD.,
      DIVISIONAL OFFICE, KIRLOSKAR ROAD, BELGAUM.
                                     ..RESPONDENTS

(SERVICE OF NOTICE TO RESP.NO.1-DIEPSNED WITH)
(BY SRI A.B.PATIL, ADVOCATE FOR RESPONDENT NO.2)
(BY SRI S.V.YAJI, ADVOCATE FOR RESPONDENT NO.3)

    THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT
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AGAINST JUDGMENT AND AWARD DATED 01.10.2013,
PASSED IN MVC.NO.2112/2011 ON THE FILE OF THE
MOTOR ACCIDENTS CLAIMS TRIBUNAL KHANAPUR,
DISMISSING THE PETITION FILED U/S. 166 OF MOTOR
VEHICLES ACT.

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

                        JUDGMENT

This appeal is preferred by the claimant being

aggrieved by the dismissal of his claim petition by Motor

Accident Claims Tribunal and Senior Civil Judge, Khanapur

(for short 'the Tribunal') in MVC.No.2112/2011 dated

01.10.2013.

2. Though the matter is listed for admission, it is

taken up for final disposal with consent of both parties.

3. Parties to the appeal shall be referred to as per

their status before the Tribunal.

4. Brief facts of the case are as under:

On 05.04.2011, at about 7.00 p.m. on Khanapur-

Nandgad road, near Lalwadi, first respondent-driver of the

Jeep bearing registration No.KA-22/B-2581, owned by the

2nd respondent and insured by the 3rd respondent, drove

the vehicle in a high speed, rash and negligent manner

and dashed against the backside of Luna of the claimant

bearing registration No.KA-22/Y-9609 ridden by the

claimant himself, due to the accident, claimant sustained

grievous injurious fracture and injuries to other parts of

his body. In view of accident having occurred due to the

rash and negligent driving by the driver of offending

vehicle and injuries having been suffered; the claimant

preferred claim petition seeking compensation against

respondents.

5. On service of notice, respondent Nos.1 and 2, the

driver as well as owner of the offending vehicle/Jeep

remained absent and placed exparte. The 3rd respondent-

Insurer filed statement of objections inter alia denying all

contentions made by the claimant in the claim petition and

infact took up the plea that the claim petition is not

maintainable on several grounds urged therein.

6. On the basis of pleadings, the Tribunal has

framed relevant issues for consideration.

7. In order to substantiate the issues and to

establish the case, the claimant got examined himself as

PW.1 and got marked documents as Exs.P1 to P11.

Whereas, no evidence came to be adduced by the

contesting respondent-Insurer and no documents were

also marked.

8. On the basis of material evidence both oral and

documentary, the Tribunal being not satisfied with the

case made out by the claimant dismissed the claim

petition as there was no involvement of the vehicle alleged

to have caused the accident.

9. Being aggrieved by the dismissal of the claim

petition, appellant-claimant has preferred this appeal

challenging the legality and correctness of the same.

10. It is the vehement contention of learned counsel

for the appellant-claimant that the Judgment and Award

passed by the Tribunal is erroneous and contrary to the

material evidence placed on record and hence the same is

flawed. It is further contended by learned counsel that FIR

has been registered on the very next day i.e., 06.04.2011

by the Hamal/Cleaner, who was traveling along with the

driver of offending vehicle, respondent No.1 herein and

that there is absolutely no delay in registering the FIR. A

delay of one day would be no delay in view of the fact that

claimant himself was admitted in the hospital having

suffered fractures. Learned counsel further contends that

the Wound Certificate has been produced as per Ex.P.5,

which clearly discloses the injuries suffered by the

claimant, thereby showing that the claimant had suffered

injuries due to the road traffic accident caused by the 1st

respondent. He further contends that as per Ex.P.4-MVI

report clearly depicts certain damages which have been

caused to his motorcycle due to the impact of the

offending vehicle-Jeep. It is not necessary that on the

impact of the Jeep from behind, motorcycle of the

claimant should necessarily sustain damages on the hind

portion. It is obvious on perusal of the Ex.P.4 that

damages are sustained to the vehicle on the front portion

and the right side of the front portion of the vehicle, which

itself be sufficient to hold that offending vehicle was

involved in causing the accident to the motorcycle of the

claimant.

11. Learned counsel further contends that he was

admitted in the Hospital from 05.04.2011 to 11.04.2011.

Therefore, the fact that he sustained injuries is apparent

from the discharge certificate and the wound certificate

and the medical bills produced at Ex.P.5, 8, 9 and 10.

Learned counsel further contends that pursuant to the

complaint and after conducting enquiry and investigation,

the Police have filed the charge sheet against the driver of

the offending vehicle, respondent No.1. Pursuant to which,

the 1st respondent pleaded guilty and has paid the fine

imposed by the Court, which itself would be material proof

of the fact that the driver of the offending vehicle involved

in the accident had pleaded guilty. The case is clearly

made out for grant of compensation in favour of the

claimant.

12. Learned counsel further contends that the

Tribunal has grossly erred in coming to the conclusion with

regard to suspicion in occurrence of accident; non-

involvement of the offending vehicle with that of the

vehicle belonging to the claimant ;and injuries not having

been sustained due to the accident caused by the

offending vehicle to the vehicle of the claimant. Hence, he

contends that the Tribunal has committed a gross error in

dismissing the claim petition and exonerating the liability

of the 3rd respondent, thereby leading miscarriage of

justice to the claimant. Hence, on these grounds and

submissions he seeks to allow the appeal and set aside the

Judgment and Award passed by the Tribunal and award

the compensation.

13. Per contra, learned counsel representing the

Insurance Company Mr.S.V.Yaji, vehemently contends that

the claimant has filed a false and frivolous case seeking

compensation in collusion with respondent Nos.1 and 2,

who are working in the same T.A.P.C.M.S. Limited,

Nandgad. Though, the learned counsel has admitted the

Insurance Policy being valid for the offending vehicle. He

disputes the occurrence of accident, involvement of the

offending vehicle with that of the vehicle belonging to the

claimant. He has further disputed the road traffic accident

having occurred on 05.04.2011 involving insured vehicle.

It is his contention that a story is woven in collusion with

respondent Nos.1 and 2 to create a fabricated theory of a

road traffic accident involving the insured vehicle with that

of the claimant vehicle only for the purpose of claiming

illegal compensation. Learned counsel further contends

that at the very first instance while filing the statement of

objections this plea has been taken there is no

involvement of the offending vehicle in the occurrence of

accident and the rash and negligent riding was on behalf

of the claimant himself, due to which, he may have met

with an accident. It is further contention that the claim

petition is liable to be dismissed on the ground of non

joinder of necessary parties as the Insurance Company of

the two wheelers has not been impleaded. Hence, on this

ground also he sought for rejection of the claim petition.

Infact the insurer has denied the age, avocation and

occurrence of accident has also very clearly stated that

there is collusion by the claimant with the owner of the

offending vehicle and has lodged false complaint in

collusion with the Police to make unlawful claim. Hence, on

this ground he seeks to dismiss the appeal and to confirm

the order which is rightly passed by the Tribunal rejecting

the claim petition.

14. Having heard the learned counsel for the

appellant-claimant and learned counsel for respondent-

Insurer, the points that would arise for consideration

before this Court are:

"i) Whether the claimant has made out a case of occurrence of road traffic accident involving the offending vehicle with that of his motorcycle?

ii) Whether the claimant is entitled for compensation?"

15. In order to substantiate the issues framed by

the Tribunal and prove that the occurrence of accident, it

takes place, claimant has examined himself as P.W.1 and

got marked Exs.P.1 to 11. Exs.P.1 to 6 are Police records

and Exs.P.8 to 11 are the medical records. Ex.P.7 being

the order sheet of the criminal case. On perusal of the

complaint registered by the complainant as per Ex.P.2, it

is seen that Ex.P.1 is the FIR, Ex.P.2 is the copy of the

complaint before the Police, which is lodged by the

Cleaner/Hamal of the offending vehicle who has stated

that he has seen the occurrence of accident and along with

him two other persons also saw the occurrence of

accident. Based on this complaint, a FIR came to be

registered as per Ex.P.1, the Police after conducting the

investigation has drawn spot mahazar at Ex.P.3 in the spot

panchanama, it is clearly stated that on visiting the spot

that there is no mark on the road with regard to

occurrence of accident. Therefore, the spot panchanama

does not reveal any mark on the road with regard to the

occurrence of accident involving the vehicle i.e. offending

vehicle as well as that of the claimant.

16. It is also to be seen that there is no sketch

prepared by the Police and same is not produced before

the Court. Now point to be considered by this Court is

whether the claimant has made out a case for involvement

of vehicle with that of his vehicle which has led to the

accident leading to the injuries suffered by the claimant.

Ex.P.5 no doubt prove the fact that claimant has suffered

injuries in a road traffic accident. However, that by itself

will not prove the fact that the offending vehicle was

involved in the road traffic accident with that of the vehicle

belonging to the claimant leading to the injuries suffered

by him. Charge sheet has been filed by the Police against

the driver of the offending vehicle, respondent No.1,

pursuant to the charge sheet, the driver of the offending

vehicle respondent No.1 has pleaded guilty and has infact

paid fine amount also. The fact of pleading guilty by

respondent No.1 cannot be ignored as it is a matter of fact

of Court record and it is evident from Exs.P.6 and 7.

However, this Court will have to analyse whether there is

any collusion between claimant and respondents lodging

the complaint for compensation. On perusal of Exs.P.1, 2

and 3 and order sheet at Ex.P.7 would indicate that the

complaint before the Police and the driver of the offending

vehicle have clearly stated before the criminal court

pleading guilty and they have accepted responsibility for

the cause of accident.

17. It is the contention of learned counsel for the

Insurer that it is a fraudulent case foisted by the claimant

in collusion with the 1st and 2nd respondents along with

complainant before the Police. Therefore, it is a primary

duty of the claimant to prove his case rather than to fall

back on the inability or weakness of the defence of the

respondents. Until and unless the road traffic accident is

proved involving the vehicle with that of the claimant, a

claim petition cannot be considered and should not be

entertained, much less allowed and the Tribunal has

rightly rejected the claim petition as it has found that the

offending vehicle was not all involved in the occurrence of

accident. It is also to be noticed here that the best piece

of evidence available for the claimant would be

complainant before the Police Station and who has seen

occurrence of accident, who according to the claimant took

him to the nearby Primary Health Centre for first-aid-

treatment. Admittedly, apart from evidence of claimant-

P.W.1, no other evidence is adduced by the claimant, the

best piece of evidence i.e., eyewitness i.e., complainant in

Ex.P.2 is also not examined in support of the case of

claimant. So also the claimant has not produced any

material with regard to any treatment or prescription or

having visited the Primary Health Centre immediately after

the alleged accident.

18. What is strange in this case is, despite the fact

that the Insurer has taken a strong contention in the

statement of objections with regard to non involvement of

the offending vehicle in the occurrence of accident with

the vehicle belonging to the claimant nothing has been

elicited in the evidence either by oral evidence or

documentary evidence to controvert and disprove the

statement made by the Insurance Company. Though, the

Insurance Company has not stepped into the witness box,

the claimant cannot rely on the weakness of the

respondent-Insurance Company. Whereas, the claimant

will have to stand on his own strength and on his own legs

rather than relying on the weakness of the Insurance

Company. It is also relevant to mention here that in the

cross examination of P.W.1, he has clearly stated that it is

the Director of T.A.P.C.M.S., who admitted him to the

Hospital. This elicitation by the Insurance Company is also

detrimental to the case of the claimant for the reason that

so called eyewitness, complainant in Ex.P.2, the driver of

the offending vehicle respondent No.1, the Director of

T.A.P.C.M.S. being working in the same society.

19. There is more than enough evidence contrary to

the case put forth by the claimant in support of the

Insurance Company. Wherein, it is apparent and appears

on all angles that this case is foisted in collusion with the

above stated persons along with Police officials to claim

compensation. Under the circumstances, the Tribunal has

rightly considered all these aspects and has passed a

detailed considered order and accordingly dismissed the

claim petition as not being entitled for compensation. It is

also relevant to mention here that merely pleading guilty

before the criminal Court itself would not be sufficient for

the claimant to prove or establish the case of involvement

of the offending vehicle in the occurrence of accident with

that of the vehicle belonging to the claimant.

20. In view of the above discussions and reasons

stated herein, I do not find any merit in the appeal and

the same being devoid of merits, the present appeal is

dismissed. Costs made easy.

SD JUDGE ckk