Dnyaneshwar S/O Vithal Kore vs Mr Budthrao S/O Bhimashanka Balu ...
2022 Latest Caselaw 7965 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH
         DATED THIS THE 2ND DAY OF JUNE 2022
                         BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                 MFA No.202069/2014 (MV)
BETWEEN:
DAYANESHWAR
S/O VITHAL KORE,
AGE: 44 YEARS,
OCC: PRIVATE SERVICE,
R/O RAJAJI NAGAR,
BIJAPUR--586101.
                                              ... APPELLANT

(BY SRI.SANGANABASAVA. B.PATIL, ADVOCATE)


AND:
1.     MR. BUDTHRAO
       S/O BHIMASHANKAR BALU,
       AGE: 40 YEARS, OCC: BUSINESS,
       R/O: HAJARE GALLI,
       MANGALAWEDA, TQ: MANGALAWEDA,
       DIST: SOLAPUR-413002
       (MAHARASHTRA STATE)
2.     BAJAJ ALLIANZ GENERAL
       INSURANCE CO. LTD.,
       CITY PRIDE, 2ND FLOOR,
       OFFICE NO.4 & 8, NEAR CITY HOSPITAL,
       OLD EMPLOYMENT CHOWK,
       102, RAILWAY LINES, SOLAPUR-413001.
                                         ... RESPONDENTS
(BY SRI.SUDARSHAN M, ADVOCATE FOR R2;
         NOTICE TO R1 SERVED)
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND TO SET-ASIDE THE JUDGMENT
AND AWARD DATED 28.07.2014 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, BIJAPUR NO.V, IN M.V.C.NO.1688/2010.   AND
ALLOW THIS APPEAL AS CLAIMED AMOUNT OF Rs.14,80,000/-
BY THE APPELLANTS IN THE CLAIM PETITION BEFORE THE
TRIBUNAL AND ETC.

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


                           JUDGMENT

This appeal is filed by the appellant under Section 173

(1) of the Motor Vehicles Act, 1988 ('MV Act' for short)

against the judgment and award dated 28.07.2014 passed in

MVC No.1688/2010 by the Principal Senior Civil Judge and

MACT-V, Bijapur ('Tribunal' for short), whereby the tribunal

has dismissed the claim petition filed by the

claimant/appellant.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the trial

Court.

3. The brief factual matrix leading to the case are

that, on 26.08.2010 at about 4.00 p.m., on Borale chowk to

Sangola road, near Borale Naka, Mangalaweda, the claimant

was proceeding by walk to his relative's house by the side of

the road. At that time, the rider of the motor cycle bearing

registration No. MH.13/AT-2372 rode it in rash and negligent

manner and dashed against the petitioner/claimant causing

injuries, resulting in the accident. The appellant sustained

grievous injuries over his body and was shifted to Nikkam

Hospital, Pandarapur for treatment. He also underwent

operation for injuries and implants came to be inserted. At

the time of accident he was aged about 40 years and was

earning Rs.10,000/- p.m., and respondents 1 and 2 are the

owner and insurer of the offending vehicle and accident is

caused by the rider of the motor cycle and as such, he filed

claim petition under Section 166 of the M.V. Act claiming

compensation of Rs.14,80,000/-.

4. Respondent No.1 did not appear before the

Tribunal and he was placed ex-parte, while Respondent No.2

insurer has appeared through a counsel and filed objections

statement admitting coverage of Insurance Policy of the

offending vehicle, but disputed the fact stating that the

alleged vehicle is not involved in the incident. He would also

contend that the accident is alleged to have occurred in

Maharashra and the parties are residents of Maharashtra, but

the claim petition is filed herein Kalaburagi without any

jurisdiction. It is also asserted that, there is delay of 21 days

in lodging the complaint and the history referred in the

medical records disclose that the injuries were suffered due to

fall and the above said motor cycle was falsely implicated in

this case. The respondent has further denied the allegations

raised in the case including the age, occupation and income of

the claimant and sought for dismissal of the claim petition.

5. The Tribunal on the basis of the pleadings, has

framed the following issues:-

i) Whether petitioner proves that he has sustained injuries in a Motor Vehicle Accident that was taken place on 26.08.2010 at about 4.00 p.m. on Borale Chowk to Sangola Road, near Borale Naka, Mangalaweda, due to rash and negligent riding of motor cycle bearing its registration No.H-13/at-

2372 by its rider involved in this case, as contended?

ii) What is just and reasonable compensation amount for which petitioner is entitled for? If so, what amount, what interest and from whom it is recoverable?

      iii)    What is final order or Award?


      6.      After   appreciating    the   oral   and   documentary

evidence, the Tribunal has answered Issue No.1                in the

negative     and in view of finding on Issue No.1, the Tribunal

did not venture to answer Issue No.2 on the ground that it

does not survive for consideration and dismissed the claim

petition. Being aggrieved by this judgment and award, the

claimant has filed this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for the

respondent-Insurer. Perused the records.

8. Learned counsel for the appellant would contend

that the Tribunal is erred in rejecting the claim petition only

on the ground of delay in lodging the FIR. He would also

contend that the appellant had sustained injuries in road

traffic accident and the records of Nikkam Hospital establish

that, he (injured) has obtained treatment therein. He would

also contend that the police have also registered a case

against the driver and owner of the vehicle and submitted the

charge sheet, which prima facie establish that the injuries are

being caused to the claimant in the road traffic accident, as

claimed. Hence, he would submit that the Tribunal has erred

in rejecting the claim petition without appreciating the oral

and documentary evidence in a proper perspective and as

such, he has prayed for allowing the appeal by decreeing the

claim petition.

9. Per contra, the learned counsel for respondent-

Insurer would support the judgment and award passed by the

Tribunal and further contend that the medical records clearly

establish that the history given as a fall and there is no piece

of document to show that the claimant sustained injury

because of the alleged accident. The injury certificate is also

not produced and merely because the charge sheet has been

submitted, a presumption cannot be drawn that the petitioner

sustained the alleged injuries in the said accident. Hence, he

would seek for rejection of the appeal.

10. Having heard the arguments and perusing the

records, it is evident that the petitioner is claiming that he

has suffered injuries in the road traffic accident dated

26.08.2010 said to have occurred at 4.00 p.m. on Borale

Chowk to Sangola road near Borale Naka, Mangalaweda. It is

important to note here that though the petitioner claims to be

resident of Bijapur, he has not produced any piece of

document to show that he is residing in Bijapur. In the cross-

examination, he admitted that he had no documents to prove

his residential address. He also admits that he do not know

which vehicle dashed him and he do not know the registration

number of the vehicle.

11. Apart from that, though the accident is said to

have occurred on 26.08.2010 at about 4.00 p.m., the

complaint was admittedly lodged after 21 days of delay. No

proper explanation is forthcoming for this delay. If the

petitioner was admitted in the hospital because of road traffic

accident, then the hospital authorities ought to have issued

MLC intimation to the concerned police, but no MLC intimation

is also forthcoming. In the complaint, the name of the rider is

given as Suresh Balu Buddivantrao, but in the charge sheet,

another person was shown as an accused being the rider of

the offending vehicle. None of these inconsistencies were

explained by the petitioner. The complaint itself is said to have

been lodged by the Police Head Constable Buckle No.575 of

Mangalaweda Police Station and there is no evidence as to on

what basis he secured the information. The petitioner in his

cross-examination claims that he has given statement before

the police in Nikkam Hospital, Pandarapura, but that

statement is not forthcoming and if at all the statement of the

petitioner was recorded in Nikkam Hospital, it should have

been treated as a complaint for registration of the FIR, but no

such facts are forthcoming.

12. Apart from that, the petitioner in his cross-

examination claims that he has stated before the doctor that

he has sustained injuries in the road traffic accident. But, on

perusal of Ex.P3-discharge card, it is evident that history was

given as fall by himself. No attempt has been made to explain

this aspect. Though all along it is asserted that the claimant

has suffered injuries in the road traffic accident, the injury

certificate is not produced and Ex.P3 relied does not refer to

the injuries sustained in the road traffic accident. There is no

evidence as to on what basis charge sheet has been laid

down, as Ex.P3 which is the copy of original Ex.P10 clearly

establish that it is with a history of fall by claimant himself.

The material document of injury certificate itself is withheld by

the petitioner, which clearly establish that an adverse

inference is required to be drawn as against the

petitioner/appellant.

13. The petitioner in his cross-examination claimed that

he regained the conciseness after two days of the accident

and police came to hospital after five days of regaining his

conciseness, but the complaint was lodged by the Police Head

Constable after 21 days. Further, PW.1 admitted that in the

discharge card, there is mention that the injuries were by self

fall. He also admitted that he has no document to show his

identity as well as the age.

14. Apart from that, the petitioner has also not

produced MVI report to show that the vehicle alleged to have

been involved in the accident was seized and got tested by the

MVI Inspector. All these facts clearly establish that the vehicle

owned by respondent No.1 is not at all involved in the

accident and the Tribunal has appreciated this oral and

documentary evidence in detail and also considering the

admissions given by the petitioner has come to a conclusion

that there is no actionable negligence or involvement of the

offending vehicle in the accident. Under these circumstances,

the appellant/petitioner has failed to make out any case for

considering either for enhancement or awarding him

compensation in respect of injuries said to have been

sustained by him in the road traffic accident. The judgment

and award of the Tribunal is neither erroneous nor capricious

so as to call for any interference. Hence, the appeal being

devoid of any merits does not survive for consideration.

Accordingly, I proceed to pass the following:

ORDER

The appeal stands dismissed.

No order as to costs.

Sd/-

JUDGE

KGR/LG