Sri Varadaraju vs Sri G Mohan
2022 Latest Caselaw 5451 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

               M.F.A.NO.1219 OF 2012 (MV)

BETWEEN:

SRI. VARADARAJU
S/O NARASIMHAIAH
AGED ABOUT 32 YEARS
R/A NO.65/2, 11TH CROSS
KAMAKSHIPALYA KAVERIPURA
BANGALORE-560079
                                             ...APPELLANT
(BY SRI. D. MANMOHAN, ADVOCATE)

AND:

1.    SRI. G. MOHAN
      S/O GANESH, MAJOR
      R/A NO.93/1, 3RD CROSS
      3RD MAIN, VIVEKNAGAR
      FURTHER EXTENSION
      BANGALORE-560047

2.    THE ORIENTAL INSURANCE CO. LTD.,
      D.O.IX, NO.70/5, SUVARNA TOWERS
      1ST FLOOR, NEAR BDA COMPLEX
      GOVINDARAJANAGARA, VIJAYANAGARA
      BANGALORE-560040
      REP. BY ITS MANAGER
                                           ... RESPONDENTS
(BY SRI. AHSOK N.NAYAK, ADVOCATE FOR R2;
    R1-SERVED)

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT,
CALL FOR RECORDS IN MVC NO.320/2010 ON THE FILE OF THE
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COURT OF XIV ADDL. JUDGE, COURT OF SMALL CAUSES &
MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU CITY
(SCCH.10) AND AGAINST THE JUDGMENT AND AWARD DATED
14.2.2011 PASSED IN MVC NO.320/2010 ON THE FILE OF 14TH
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER,
MACT,    BANGALORE,   DISMISSING    THE   CLAIM    FOR
COMPENSATION.

     THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

The present appeal is filed by the claimant

challenging the judgment and award dated 14.02.2011 in

MVC.No.320/2010 passed by the Motor Accident Claim

Tribunal, Bengaluru. The Tribunal has dismissed the claim

petition. Being aggrieved by the dismissal of the claim

petition, the claimant has preferred the present appeal.

2. Brief facts of the case are as under:

On 16.08.2009 at about 6.45 p.m in front of Sneha

Bhavana near Law College, Jnanabharathi Campus,

Bengaluru, the appellant/claimant was proceeding in his

motor cycle bearing Reg. No.KA 04 EC 6198 at the spot

road, at that time, the motor cycle bearing Reg. No.KA 03

EN 6488 ridden by its rider in a rash and negligent

manner, came with high speed, dashed to the appellant's

motor cycle and caused the accident. Due to which, the

appellant sustained grievous injuries. Immediately, he was

shifted to hospital. Due to the said accident, the appellant

is not able to attend his regular work and also suffered loss

of income as well as suffered mentally, physically and

financially.

      3.       The   claim     petition       was        filed   by   the

appellant/claimant         before       the    Tribunal          claiming

compensation of Rs.20,00,000/-. The said petition was

dismissed by the Tribunal. Being aggrieved by the same,

the present appeal is preferred before this Court.

4. Learned counsel for the appellant submitted

that the Tribunal has erroneously dismissed the claim

petition on the ground that there is delay of four days in

lodging the complaint. Further, dismissed the petition on

the ground that there is no mentioning of offending vehicle

number in the medical record. Therefore, submitted that

the Tribunal is not proper and correct in dismissing the

claim petition. Further, submitted that while considering

Ex.R.4-MLC Register Extract, which is produced by

respondent No.2-Insurance Company itself shows the fact

that the appellant/claimant had met with an accident and

intimated to the police. Therefore, it is proved

unequivocally that the appellant met with an accident and

sustained injuries, but the Tribunal has lost sight of all

these material evidence and erroneously dismissed the

claim petition. Therefore, prays to allow the appeal and

award the compensation to the appellant.

5. It is further submitted that the rider of the

offending motor cycle has appeared before the learned

Magistrate and pleaded guilty and paid fine of Rs.2,500/-

for having caused the accident. The copy of the order

dated 13.01.2010 has been produced along with the

material evidence by invoking Order XLI Rule 27 r/w

Section 151 of CPC. Therefore, all the evidences prove the

fact that the appellant sustained injuries in the road traffic

accident. Therefore, just because, there is delay of four

days in lodging the complaint and also non-mentioning in

the medical records are not a ground to reject the claim

petition. Therefore, prays to allow the appeal.

6. On the other hand, learned counsel appearing

for respondent No.2-Insurance Company vehemently

submitted that the Tribunal after considering all the

material evidence on record has rightly dismissed the claim

petition as motor cycle is falsely fixed into the case.

Further, there is delay of four days in lodging the

complaint, which clearly depicts the fact that the motor

cycle was falsely implicated in the case, which is rightly

appreciated by the Tribunal. Therefore, the judgment and

award passed by the Tribunal is correct and proper one.

Further, submitted that in none of the medical records,

there is no mentioning that the appellant met with an

accident by involving motor cycle. Therefore, it creates

doubt regarding the factum of accident and injury

sustained by the appellant. It is rightly appreciated by the

Tribunal. Hence, the judgment and award passed by the

tribunal is justified. Hence, prays to dismiss the appeal.

7. The Tribunal has dismissed the appeal on the

ground that there is delay of four days in lodging the

complaint. Further, assigned reason that in none of the

medical records, there is no mentioning of sustaining

injuries by the appellant in the road traffic accident.

Therefore, having creating doubt in the mind, the Tribunal

has dismissed the claim petition. Further, the Tribunal

opined that the investigation is not proper. Further the

Motor Inspection Report was conducted by the

Investigation Officer after 3½ months and there is no

damages found on the motor cycle. Hence, for all these

reasons, the Tribunal has dismissed the claim petition.

8. On considering all the material evidence on

record, it is true that there is delay of four days in lodging

the complaint, but the Tribunal ought to have taken note

of the fact that the appellant was unconscious soon after

the accident. Therefore, quite naturally, there might be

some delay in lodging the complaint. The first and

foremost thing is to give medical treatment to the injured

person rather than going and lodging the complaint before

the police. Here the paramount thing is to get survival of

the injured in the road traffic accident. Therefore, just

because, there is delay of four days in lodging the

complaint that cannot be a ground to reject the claim

petition. In this regard, I place reliance on the decision of

the Hon'ble Apex Court in the case of Ravi Vs.

Badrinarayan and Others reported in AIR 2011 SC

1226. Further learned counsel for the appellant placed

reliance on the judgment of the Division Bench of this

Court in the case of Sumangala Vs. Virupakshi and

Others reported in 2012 Kant MAC 61 (Kant).

9. In the above stated cases, just because, there

is discrepancy in mentioning the vehicle number that

cannot be a ground to reject the claim petition. Therefore,

having considered the principles of law laid down by the

Hon'ble Apex Court, just because, there is delay of four

days in lodging the complaint, that cannot be a ground to

dismiss the claim petition and there may be various factors

for causing delay in lodging the complaint, but that can be

considered on humanitarian ground and considering the

practical aspects involved in the case where the injured

was unconscious and all are struggling hard to get survival

of the injured. Hence, on this ground, there may be some

delay in lodging the complaint. Therefore, the delay in

lodging the complaint cannot be made as a ground to

dismiss the claim petition.

10. Further, the Tribunal has observed that in the

medical records, there is no mentioning of injuries

sustained by the appellant in the road traffic accident.

Hence, dismissed the claim petition. It is always not

expected to mention the number of vehicle in the medical

records. Therefore, just because, the history of accident is

not mentioned in the medical record, that cannot be a

ground to reject the claim petition, but it is pertinent to

mention here that Ex.R4-MLC Register Extract of BGS

Global Hospital, Bengaluru, which is produced by

respondent No.2-Insurance Company in the evidence

before the Tribunal, in which, it has mentioned the history

of accident that the appellant had sustained injuries in the

road traffic accident as motor cycle was involved.

Therefore, this itself alone is sufficient to hold that the

appellant has sustained injuries in the road accident traffic,

but this material evidence is lost sight by the Tribunal.

Therefore, observations made by the Tribunal are not

sustainable.

11. Further, the Tribunal has observed that there

is delay of 3 ½ months in getting the Motor Vehicle

Inspection Report and there are no damages caused to the

motor cycle. This observation also is not correct, just

because, there is delay of 3 ½ months in getting the Motor

Vehicle Inspection Report, that cannot be a ground to

discard the evidence of the appellant regarding the road

traffic accident and injuries sustained in the said accident.

Further, if the motor cycle did not get damage that cannot

be a ground to reject the claim petition. If the motor cycle

dashed against the person, then there are no chances of

getting damage to the motor cycle. On that ground alone

the fact of accident cannot be discarded. In the present

case, whether the motor cycle got damaged or not, on that

hypothetical ground the claim petition ought not to have

been dismissed. Therefore, for all these reasons, the

Tribunal found to be erroneous as the Tribunal has wrongly

dismissed the claim petition. Therefore, the Tribunal has

not properly appreciated the evidence on record and

wrongly dismissed the claim petition. Therefore, the

Tribunal has not properly appreciated the evidence on

record and wrongly dismissed the claim petition.

Therefore, it is proved that the appellant had sustained

injuries in the road traffic accident and therefore, he has

rightly filed the claim petition. Hence, the claim petition

filed by the appellant is a fit case for awarding

compensation.

12. Further upon considering I.A.No.1/2016 filed

under Order XLI Rule 27 r/w Section 151 of CPC for

additional evidence, by which, the appellant has produced

the certified copy of the order dated 13.01.2010 passed in

CC.No.2258/2009 on the file of the Metropolitan Magistrate

Traffic Court-II, Bengaluru. This document is the certified

copy of the order sheet for the aforesaid criminal case, in

which, it is stated that rider of the motor cycle had pleaded

guilty and paid fine of Rs.2,500/-. This factum itself prove

that the appellant had sustained injuries in the road traffic

accident. Therefore, the application filed in this regard is

liable to be allowed and accordingly, the said additional

evidence is considered in favour of the appellant. The

Tribunal is directed to reconsider the matter for awarding

compensation as expeditiously as possible not later than

six months. Accordingly, I.A.NO.1/2016 is allowed.

13. Hence, for the aforesaid reasons, the judgment

and award passed by the Tribunal is not sustainable.

Hence, it is liable to be set aside. Hence, the appeal

succeeds. Accordingly, I proceed to pass the following :

ORDER

Appeal is allowed. The judgment and award dated

14.02.2011 in MVC.No.320/2010 passed by the Motor

Accident Claim Tribunal, Bengaluru, is hereby set aside.

The case is remanded to the Tribunal for

consideration so as to award compensation as per law. It is

made clear that the Tribunal has to consider the claim

petition for awarding compensation as per law without

going into the aspect of accident on merits once again.

Registry is directed to return the trial Court records

to the Tribunal along with certified copy of the order

passed by this Court forthwith without any delay.

Sd/-

JUDGE

PB