B.K. Appanna S/O Khenchashetty34 vs Rafeeq S/O Kashimsaheb Goundi And ...
2022 Latest Caselaw 7281 Kant

                             1




IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

        DATED THIS THE 19TH DAY OF MAY, 2022

                         BEFORE

          THE HON'BLE MS.JUSTICE J.M.KHAZI

              M.F.A.No.31095 OF 2013 (MV)

 BETWEEN:

 B.K.APPANNA
 S/O KHENCHASHETTY,
 AGE: 34 YEARS,
 OCC: CONTRACTOR (PRESENT NIL),
 R/O MANJUNATH NAGAR,
 DARGA ROAD,
 BIJAPUR - 586 101
                                             ...APPELLANT
 (BY SRI SANGANABASAVA B. PATIL, ADVOCATE)

 AND:

 1.     RAFEEQ
        S/O KASHIMSAHEB GOUNDI
        AGE: 41 YEARS
        OCC: BUSINESS
        R/O SUBHAS COLONY
        BIJAPUR - 586 101

 2.     THE BRANCH MANAGER
        NATIONAL INSURANCE CO. LTD.,
        SIDDESHWAR ROAD
        BIJAPUR - 586 101
                                         ... RESPONDENTS

 (BY SRI.PREETI PATIL, ADVOCATE FOR R2
  R1 IS DISPENSED WITH )
                               2




      THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT PRAYING TO SET ASIDE THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.V BIJAPUR AT: BIJAPUR IN
MVC.NO.1502/2007 DATED 11TH JUNE OF 2010 AND ALLOW
THIS APPEAL AS CLAIMED AMOUNT OF RS.4,00,000/- BY THE
APPELLANTS IN THE CLAIM PETITION BEFORE THE TRIBUNAL IN
THE INTEREST OF JUSTICE AND EQUITY AND ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT     ON    12.04.2022,  COMING    ON    FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-

                        JUDGMENT

Being aggrieved by the dismissal of his claim

petition, petitioner has filed this appeal filed under Section

173(1) of the Motor Vehicle Act, 1988 (hereinafter referred

to as 'MV Act') with a prayer to set aside the impugned

judgment and award, allow the claim petition and grant

compensation in a sum of Rs.4,00,000/-.

2. For the sake of convenience the parties are

referred to their by rank before the Tribunal.

3. FACTS: The facts leading to filing of claim

petition are that on 27.07.2007, petitioner was proceeding

on his motor cycle bearing registration No.KA-28/Q-9759

from Bijapur city to his house. At about 10.30 a.m. when

petitioner was near R.N.S Motors Company on Bijapur-

Darga Road, a Piaggio auto bearing registration No.KA-

28/A-5878 (hereinafter referred to as offending vehicle)

came from the opposite side, driven by its driver in rash or

negligent manner and dashed against the motor cycle of

the petitioner. In the said accident, petitioner sustained

grievous injuries. He was admitted to Shrikrishna Hospital,

Bijapur. He took treatment as in-patient. Inspite of

prolonged treatment and spending Rs.25,000/- towards

medical expenses, petitioner is not completely cured. He

has suffered permanent partial disability. As the owner and

insurer of the offending vehicle, respondents are jointly

and severally liable to pay the compensation.

4. Respondent Nos.1 and 2 have filed separate

written statements denying and disputing the involvement

of the offending vehicle in the alleged accident. They have

also denied the age, occupation, income, nature of the

injury suffered by the petitioner and that the same have

resulted in permanent partial disability. Respondent No.1

contended that the offending vehicle was covered by a

valid policy and in the event of allowing the petition,

respondent No.2 is liable to indemnify him.

5. Respondent No.2 has specifically pleaded that

only for the purpose of claiming compensation, the

offending vehicle has been falsely implicated. There is

inordinate delay in filing the complaint and the same has

not been explained and sought for dismissal of the

petition.

6. Based on these pleadings, the Tribunal has

framed the necessary issues.

7. In support of his case, petitioner has examined

himself as PW-1 and one witness as PW-2. He has relied

upon Ex.P1 to 12.

8. On the other hand respondent No.1 has

examined himself as RW-1. He has examined the driver of

the offending vehicle as RW-3.

9. On behalf of respondent No.2, one witness is

examined as RW-2 and Ex.R1 and 2 are marked on behalf

of respondents.

10. Vide the impugned judgment and award, the

Tribunal has dismissed the claim petition holding that it is

a fraudulent claim.

11. Being aggrieved by the impugned judgment

and award, petitioner has come up with this appeal

contending that the Tribunal is not justified in dismissing

the claim petition on the ground that there is inordinate

delay of 41 days in filing the complaint. There are no legal

and valid grounds to reject the claim petition which has

resulted in total miscarriage of justice. The Tribunal is also

not justified in dismissing the claim petition on the ground

that petitioner has not produced the documents for having

taken treatment as in-patient. Petitioner has produced the

wound certificate, X-ray as well as the disability certificate

and MLC report of the Shrikrishna Hospital, Bijapur. Hence,

impugned judgment and award is liable to be modified and

prays to allow the appeal and consequently allow the

petition and grant compensation.

12. Heard arguments of both sides and perused

the record.

13. It is the definite case of the petitioner that the

accident took place on 27.07.2007 at about 10.30 a.m.

and immediately he was shifted to Shrikrishna hospital,

Bijapur. He has taken treatment as in-patient for 10 days.

Except the self-serving statement of the petitioner

regarding the involvement of the vehicle, there is no

material to prove the actual accident. Petitioner has not

chosen to examine any of the independent witnesses

either to prove the accident or the fact that he was taken

to the hospital and he took treatment for a period of 10

days as in-patient and subsequently also he was under

treatment. However, he has not produced a single scrap of

paper to prove the same.

14. If at all petitioner was in-patient for 10 days,

he could have produced the discharge summary, the

treatment papers, the prescriptions and medical bills for

having purchased the medicines and also payments made

to the hospital for the prolonged treatment. Petitioner is

not having any explanation for not producing any of these

documents. Ex.P5 is stated to be the wound certificate

issued by the Shrikrishna Hospital, wherein it is stated that

petitioner came and admitted himself i.e., he was not

accompanied by any other person. Usually in the wound

certificate, the period during which the patient was under

treatment as in-patient would be noted by way of date of

admission and date of discharge. However, in Ex.P5 these

details are not forthcoming.

15. Although according to the petitioner the

accident took place on 27.07.2007 and he was under

treatment as in-patient for 10 days, immediately after

expiry of 10 days, i.e., on his discharge petitioner has not

chosen to file the complaint. On the other hand he has

filed the complaint on 08.09.2007 i.e, after expiry of 42

days. Petitioner has not explained the delay of at least 32

days in filing the complaint after his discharge from the

hospital. Petitioner has also not chosen to examine any of

the Doctors who have treated him at Shrikrishna hospital.

16. On the other hand he has chosen to get the

disability certificate from PW-2 Dr.Ashpakhusain A.Magi,

who is not a treating doctor. Only on the basis of wound

certificate at Ex.P5, PW-2 has given the disability

certificate at Ex.P7. In fact during his cross-examination,

he has admitted that at Shrikrishna Hospital, petitioner is

not treated by an orthopedic and the wound certificate is

given by Dr.Dharmaraya Ingale and he is not an

orthopedic surgeon. Petitioner is not having any

explanation as to why he has not chosen to get the

disability certificate from the doctors who have treated him

at the Shrikrishna hospital, especially when the said

hospital is also situated in Bijapur city. There was no

impediment for the petitioner to get the disability

certificate from the doctors who treated him at the said

hospital. On the other hand he has chosen to get the

disability certificate from a doctor who has not treated him

and who appears to be a doctor who routinely issues such

disability certificates. As admitted by PW-2 in the x-ray at

Ex.P8 the name of the person who has taken the x-ray is

not mentioned and similarly Ex.P8 is not accompanied by

x-ray report.

17. From the cross-examination of PW-2 it is quite

evident that he has not calculated the so called disability

suffered by the petitioner in accordance with the

prescribed norms. He has issued the said certificate only to

help the petitioner. Even though there is no hard and fast

rule that the disability certificate should be given by the

treating doctor only, having regard to the peculiar facts

and circumstances of the present case, I am of the

considered opinion that report at Ex.P7 and the testimony

of PW-2 are not reliable and no reliance could be placed on

them.

18. On the other hand respondent No.1 who is

examined as RW-1 and the driver of the offending vehicle

who is examined as RW-3 have specifically deposed that

the offending vehicle is not at all involved in the accident

and the concerned police have highhandedly implicated it.

The petitioner has relied upon the fact that respondent

No.1 got released the offending vehicle from the Court and

RW-3 has pleaded guilty. When the police have seized the

offending vehicle, it was inevitable for respondent No.1 to

get it released from the Court. Similarly, during the course

of his evidence RW-3 Shabbir Babu Kolhar has specifically

deposed that as he was pressurized by the police, he

pleaded guilty and got the matter closed. However, in the

absence of any independent witnesses being examined to

prove the alleged accident and also subsequent treatment

of the petitioner and also in the light of

inordinate/unexplained delay in filing the complaint, no

reliance could be placed on the fact that the vehicle was

got released from the Court by respondent No.1 and RW-3

has pleaded guilty.

19. On this aspect decision of this Court in Bajaj

Alliance General Insurance Co.Ltd Vs. B.C. Kumar

and another1 which is also relied upon by the Tribunal is

relevant and applicable to the case on hand, wherein it

was held that inspite of the fact that a charge sheet is filed

against the driver of the offending vehicle and he has

pleaded guilty, in the light of the specific defence taken by

the respondents that no such incident has taken place, it is

for the claimant i.e., petitioner to prove the accident and

that he sustained injuries in the said accident. The Court

cannot mechanically proceed to accept the charge sheet

and the investigation conducted by the police, who in

many cases would be more than ready to oblige the

claimants to make false claims.

20. In the grounds of appeal, the petitioner has

urged that he has produced the MLC report sent by the

Shrikrishna hospital to the concerned police, but the

concerned police have not registered the case. However,

the alleged MLC report is not marked. In fact in the trial

ILR 2009 KAR 2921

Court records, the photocopy of the MLC report is

available. It appears it is not marked because it is a

photocopy. However, petitioner has not chosen to get

either the original records summoned from the said

hospital or produce the certified copy of the same. He has

also not chosen to examine any of the doctors who have

treated him to prove that in respect of the injuries

sustained by him in the alleged motor vehicle accident, he

has taken treatment and MLC report was sent. Absolutely,

he had no impediment to produce the said documents

including the medical prescriptions and bills which he had

spent for the treatment.

21. For the reasons best known to him, petitioner

has not even chosen to produce documents which are in

his custody viz., the prescriptions, medical bills as well as

the bills of the hospital. They would have been the best

evidence available within his power and custody. Viewed

from any angle, the case of the petitioner does not inspire

any confidence. On the other hand throughout, the

conduct of the petitioner is very fishy. In the

circumstances, assigning valid reasons, the Tribunal has

rightly rejected the claim petition. I find no reason to

interfere with the conclusions arrived at by the Tribunal.

22. In the result the appeal filed by the petitioner

fails and accordingly, I proceed to pass the following:

ORDER

(i) Appeal filed by the petitioner is dismissed.

(ii) The impugned judgment and award of the

Tribunal is confirmed.

(iii) The registry is directed to transmit the trial Court

record along with copy of this order to the

Tribunal at the earliest.

Sd/-

JUDGE

RR