Akash K H vs Prem Sagar K H
2022 Latest Caselaw 8620 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                 MFA No.522 OF 2018(MV)

BETWEEN:

Akash K.H.,
S/o Hemanth Kumar K.R.,
Now aged about 21 years,
R/a B. Kaatihally Village,
Aduvally, Hassan City-573101.                 ... Appellant

(By Sri.Raghu R., Advocate)

AND:

1.     Prem Sagar K.H.,
       S/o Hemanth Kumar K.R.,
       Major,
       R/a B. Kaatihally Village
       Aduvally, Hassan city-573101.

2.     The Manager
       Universal Sompo Gen. Ins. Co. Ltd.,
       Flat NO. E.L.94, TTC Industries Area,
       M.K.D.C. Mahaape,
       Navi Mumbai,
       Maharashtra-400710.                ... Respondents

(By Sri.Ravi S. Samprathi, Advocate for R2;
  Notice to R1 served and unrepresented)
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:10.11.2017 passed
in MVC No.455/2017 on the file of the 3rd Additional
District Judge & MACT, Hassan, Dismissing the claim
petition for compensation.

      This MFA, coming on for hearing, this day, this
Court, delivered the following:

                    JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant Company being

aggrieved by the judgment and decree dated

10.11.2017 passed by MACT, Hassan in MVC

No.455/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.10.2016 at about 12.30

p.m. the claimant was proceeding as a pillion rider in

the motorcycle bearing registration No.KA-03/HN-

0834. When they reached near Bridge, Malali Markuli

road, Holenarasipur Taluk, at that time, the rider of

the motorcycle rode the same at a high speed and in a

rash and negligent manner, to avoid the dog, applied

brake, as a result, the claimant fell down. As a result

of the aforesaid accident, the claimant sustained

grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the

claimant and the medical expenses are denied. It was

pleaded that the petition itself is false and frivolous in

the eye of law. It was further pleaded that the

accident was due to the rash and negligent riding of

the vehicle by the rider of the motorcycle. It was

further pleaded that the driver of the offending vehicle

did not have valid driving licence as on the date of the

accident. It was further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.Abdul Basheer was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P11. On behalf of the

respondents, neither any witness was examined nor

got exhibited documents. The Claims Tribunal, by the

impugned judgment, inter alia, dismissed the petition

holding that the claimant has failed to prove that he

suffered injuries due to rash and negligent riding of

the motorcycle in which he was proceeding. Being

aggrieved, this appeal has been filed.

6. Sri Raghu R., the learned counsel for the

claimant has contended that the claimant was the

pillion rider in the motorcycle bearing registration

No.KA-03/HN-0834, the rider of the motorcycle was

riding the same in a rash and negligent manner and

he has applied the break suddenly. Due to the impact

the claimant fell down and suffered injuries on

29.10.2016. Immediately he was shifted to Janapriya

Hospital, K.R.Purm, Hassan. As per Ex.P9,

immediately the hospital authorities have intimated

the same to the Sub-Inspector of Police, Exension

Police Station, Hassan. Since the police have not

registered any complaint, after recovering from the

injury, on his instructions, his father has lodged the

compliant on 08.11.2016. Therefore, there is a delay

in lodging the complaint. But the Tribunal without

considering this aspect of the matter has erred in

holding that there is no accident occurred using the

motorcycle bearing registration No.KA-03/HN-0834

and the injuries suffered by the claimant is not due to

the accidental injury is not correct and the same is an

error apparent on the face of the records. Hence, he

sought for allowing the appeal.

7. On the other hand, Sri Ravi S.Samprathi,

learned counsel appearing for the Insurance Company

has raised the following contentions:

Firstly, the accident occurred on 29.10.2016 and

the complaint has been lodged on 08.11.2016, there

is a delay of 30 days in lodging the complaint and no

proper explanation has been given for the delay in

lodging the complaint.

Secondly, the rider of the motorcycle is none

other than the brother of the claimant. Since the

claimant has not suffered any injury due to the falling

from the motorcycle but to make false claim he has

colluded with the police and has filed the complaint.

Thirdly, even though the police have registered

FIR and charge sheet against the rider of the

motorcycle, the claimant has not examined the

investigating officer and even to prove the medical

records he has not examined the doctor or any

officers from the Janapriya Hospital, Hassan. Since it

is a false claim, the Tribunal has rightly rejected the

claim petition. Hence, sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records. .

9. The case of the claimant is that on

29.10.2016 at about 12.30 p.m. the claimant was

proceeding as a pillion rider in the motorcycle bearing

registration No.KA-03/HN-0834. When they reached

near Bridge, Malali Markuli road, Holenarasipur Taluk,

at that time, the rider of the motorcycle rode the

same at a high speed and in a rash and negligent

manner, to avoid the dog, applied brake, as a result,

the claimant fell down. As a result of the aforesaid

accident, the claimant sustained grievous injuries and

was shifted to Janapriya Hospital, Hassan. The MLC

extract has been produced as Ex.P10 wherein it has

been written in the history column as 'RTA on

29.10.2016'. The case sheet has been produced as

per Ex.P9 along with the letter issued by the hospital

authorities to the Sub-Inspector, Extension Police

Station, Hassan informing about the accident. The

police have received the intimating on 30.10.2016 and

there is an endorsement on that letter. To prove the

same the claimant has not examined any officer from

the Janapriya Hospital and no authority from the

Janapriya hospital has been examined to prove that

they have communicated regarding the accident to the

police immediately. Even though the police have filed

charge sheet against the driver of the offending

vehicle, the concerned investigating officer has not

been examined to prove the same. There is lot of

discrepancy in the records produced by the claimant.

Under these circumstances, the matter requires to be

remitted back to the Tribunal.

10. Accordingly, appeal is allowed. The

judgment and award passed by the Tribunal is set

aside. The matter is remitted back to the Tribunal for

fresh consideration reserving liberty to the parties to

adduce additional evidence and produce additional

documents to prove their case. The Tribunal is

directed to reconsider the matter afresh without being

influenced by any observation made by this Court.

All the contentions of the parties are left open.

Since the parties are represented by learned

counsel, the parties are directed to appear before the

concerned Tribunal on 28.07.2022 at 11.00 a.m.

without any further notice from this Court. The

Tribunal is directed to dispose of the matter within six

months from the date of appearance of the arties.

Sd/-

JUDGE Cm/-