The Legal Manager vs Chikkaramaiah
2022 Latest Caselaw 7556 Kant

                        1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF MAY 2022

                     BEFORE

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

          MFA No.5702 OF 2019 (MV)


BETWEEN

THE LEGAL MANAGER
LIBERTY VIDEOCON GENERAL
INSURANCE COMPANY LIMITED
NO 1, ALYASSA 1ST FLOOR
REAR PORTION OLD NO 28
NEW NO 23
RICHMOND ROAD
BANGALORE - 560025
BY ITS MANAGER

                                   ... APPELLANT

(BY SRI.O. MAHESH, ADV.)


AND

1.    CHIKKARAMAIAH
      AGE 72 YEARS
      S/O LATE CHIKKANNAGOWDA
      R/O HUTRIDURGA HOBLI
      KUNIGAL TALUK
                         2




     BOMMENAHALLI
     YELIYUR TUMAKUR - 572 101

2.   MOHAN B V
     S/O VENKATESH
     BULUGUMBA VILLAGE AND POST
     KASABA HOBLI
     MAGADI TALUK
     RAMANAGARA DISTRICT
     MAGADI - 562 120

                                    ...RESPONDENTS

(BY SRI.K. R. RAMESH, ADV. FOR C/R-1;
    NOTICE TO R-2 SERVED AND UNREPRESENTED)



     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST    THE   JUDGMENT     AND   AWARD   DATED
30/05/2019, PASSED IN MVC NO.4278/2017, ON THE
FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE
&    XIX   ACMM.,   MEMBER,    MACT,   (SCCH-23),
BENGALURU,       AWARDING     COMPENSATION     OF
RS.5,37,326/- WITH INTEREST AT THE REATE OF 6%
P.A., FROM THE DATE OF PETITION TILL THE DEPOSIT
OF THE AMOUNT.


     THIS MFA COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                       JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment and decree dated 30.5.2019 passed

by MACT, Bengaluru in MVC 4278/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.5.2017 at about 9:00 am

on NH-75 road near bus stop, Anchepalya,

Huthridurga Hobli, Kunigal Taluk, Tumkur, at that

time, Splendor Pro motorcycle bearing registration

No.KA-42-S-0935 being ridden by its rider at a high

speed and in a rash and negligent manner, dashed to

the claimant who was walking on the left side of the

road. 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. It was pleaded that the petition itself is false

and frivolous in the eye of law. It was further pleaded

that there was delay in lodging the complaint that the

delay is sufficient to say that the alleged offending

vehicle is falsely implicated. The manner of accident,

age, avocation and income of the claimant and the

medical expenses are denied.

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.Jagadish.B.C was examined

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P13. On behalf of the respondents, two

witnesses were examined as RWs-1 and 2 and got

exhibited documents namely Ex.R1 to Ex.R2. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent riding of the offending vehicle by its

rider, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.537,326/- along with

interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the appellant-

Insurance Company has raised the following

contentions:

Firstly, the tribunal has failed to frame proper,

relevant and necessary issues in the light of pleadings

of respective parties to claim proceedings except usual

THREE issues mechanically and without proper

application of its mind and ignoring legal position that

non-framing (Rule 245 of K.M.V. Rules) of proper and

necessary issues vitiate entire proceedings.

Secondly, the finding of the tribunal on issues of

negligence as well as involvement of insured vehicle in

alleged accident suffer from many infirmity and

illegality as it failed to notice following facts which

demonstrated mala fides of the claimant as well as

creation of police investigation reports with Co-

operation of insured to make unrighteous claim

against insurer:

a) Complaint Exhibit P-2 was stated to have

been lodged with Kunigal police by one

Mr.Ramesh, son of the injured on 25-05-2017 at

2:10 PM though alleged accident was on 21-05-

2017 at 09:00 AM and the said complaint was

result of an after thought to implicate insured

motor cycle with Co-operation of insured who

remained ex-parte and with the police.

b) Mr.Ramesh, son of the injured who was

stated to be with the injured at the time of

alleged accident did not choose to be examined

for obvious reason.

     c)     Wound       certificate         issued         by

     Adichunchanagiri      Hospital    dated   21-09-2017

recorded history of injury "RTA" on 21-05-2017

at 08:30 AM without mentioning type of vehicle

or registration number of any vehicle.

d) The sport mahazar- Exhibit P-4, was stated

to have been prepared on 25-05-2017 at 05:15

P.M. was purely hypothetical besides not being

proved.

e) The complaint Exhibit P-2 by Ramesh, son

of injured was a Kannada type written complaint

and stated to have been lodged with Kunigal

Police on 25-5-2017 in person and this exhibit

was also not proved as required under law.

f) Exhibit R-1, police notice, and Exhibit R-2,

MLC extract, produced and marked in evidence

of an officer of the appellant company and doctor

Shivamadu clearly established that the injured

vehicle was not involved and it was a case of "hit

by an unknown two wheeler and which sped

away".

Thirdly, the tribunal grossly erred in holding that

the injured vehicle was involved and caused the

alleged accident when there was positive as well as

corroborative evidence that it was a case of hit and

run by a unknown vehicle.

Fourthly, the tribunal failed to appreciate the

positive evidence of Dr.Shivamadu, who was

examined as RW-1 clearly deposed on oath that the

injured came to the hospital accompanied by his son

but history of injury was given by the injured himself

which was reflected in Exhibits R-1 and R-2."

In support of his contentions, he has relied upon

the judgment of this Court passed in MFA 11443/2006

and connected matters disposed of 18.7.2012.

With the above contentions, he sought for

allowing the appeal.

7. Per contra, learned counsel for the claimant

has contended that due to the accident occurred on

21.5.2017, the claimant has suffered grievous injures,

he was unconscious and immediately, he was shifted

to A.C.Giri Hospital, Nagamangala. Thereafter, on the

same day he has been shifted to KIMS Hospital and

then shifted to Unity Life Line Hospital India Pvt. Ltd.

Since the claimant was in unconscious stage, he was

unable to give complaint and even his son, Mr.Ramesh

was busy with his father in providing treatment to his

father. After the claimant recovered from unconscious

stage, his son, Mr.Ramesh gave complaint on

25.5.2017 and hence there is delay of 4 days in

lodging the complaint. The Tribunal has rightly

considered the reasons for the delay in lodging the

complaint.

He further contended that RW-1, in his evidence

has stated that the claimant was accompanied to the

hospital along with his relative one Chikkanna Gowda.

In the cross examination, RW-1 has categorically

stated that along with the claimant, one Chikkanna

Gowda and son of the claimant had also accompanied

the claimant to the hospital. On the basis of the

statement of Chikkanna Gowda, the hospital authority

have taken the report. Therefore, he has contended

that Mr.Ramesh, son of the claimant was an eye

witness to the accident. He was present with his

father, when the accident occurred. He further

submitted that in respect of stray admission of

claimant (PW-1) regarding that he was alone while

crossing the road, cannot be accepted. Because the

other materials clearly reveals that the son of the

claimant was also present with the claimant at the

time of the accident.

Lastly, he has contended that in the judgment

relied upon by the Insurance Company i.e., MFA

11443/2006 and connected matters, the complaint

has been registered against the unknown vehicle as

'hit and run' case. Whereas in the instant case, the

police have registered FIR against the offending

vehicle bearing No.KA-42-S-0935. Therefore, the said

judgment relied upon by the Insurance Company is

not applicable to the present case. Therefore, he

sought for dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the records.

9. The case of the claimant is that on

21.5.2017 at about 9:00 am when he was proceeding

along with his son Ramesh near NH75 road, near bus

stop, Anchepalya, Huthridurga Hobli, Kunigal Taluk, at

that time, Splendor Pro motorcycle bearing No.KA-42-

S-0935 belonging to respondent No.1 and insured

with respondent No.2 was ridden by its rider in a rash

and negligent manner came on the wrong side and

dashed against the claimant, who was walking on the

left side of the road. As a result of which, he fell down

and sustained grievous injuries. Immediately, he was

shifted to A.C.Giri Hospital, Nagamangala, then he

was shifted to KIMS hospital, Bangalore and on the

same day, he was shifted to Unity Life Line Hospital

India Pvt. Ltd. for further treatment. Mr.Ramesh, son

of the claimant accompanied his father, who was in

unconscious stage and he was fully engaged in

providing treatment to his father. Therefore, he was

not in a position to lodge the complaint immediately.

Thereafter, when his father recovered from

unconscious stage, Mr.Ramesh lodged the complaint

on 25.5.2017. Considering the evidence of the parties

and materials available on record, the Tribunal has

rightly held that there is sufficient reasons for delay in

lodging the complaint.

10. Under the Motor Vehicles Act in the claim

petition before the Claims Tribunal the standard of

proof is much below than what is required in a

criminal case as well as in the civil case. No doubt,

before the Tribunal, there must be some material on

the basis of which the Tribunal can arrive or decide

things necessary to decide for awarding

compensation, but the Tribunal is not expected to take

or to adopt a nicety of a civil or criminal case. After

all it is a summary enquiry and it is the legislation for

the welfare of the Society. The proceedings under the

Motor Vehicles Act are not akin to the proceedings

under civil rules. Hence, strict rules of evidence are

not required to be followed in this regard. In the case

of MANGLA RAM -v- ORIENTAL INSURANCE

COMPANY LIMITED (2018) 5 SCC 656, the Hon'ble

Apex Court has held as hereinbelow:

"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was

acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."

11. As per Ex.P-2, the complaint lodged by

Mr.Ramesh, it is very clear that in the complaint, he

has specifically stated that the vehicle involved in the

accident is motorcycle bearing No.KA-42-S-0932 and

he was specifically stated that he along with his father

were walking on NH75 road, near bus stop

Anchepalya, at that time, the rider of the offending

vehicle came in a rash and negligent manner and

dashed against the complainant's father. On the basis

of the complaint, the police have registered FIR as per

Ex.P-1. In the FIR, the offending vehicle number is

specifically mentioned as bike bearing No.KA-42-S-

0935. On the basis of the complaint lodged by

Mr.Ramesh, the police have conducted investigation

and filed charge sheet against the rider of the

motorcycle.

The insured has been served with the notice of

the claim petition, but he has not chosen to appear

before the Tribunal and to file objections. Therefore, it

is clear that he has not denied the involvement of the

vehicle in the accident. The rider of the motorcycle

has not challenged the charge sheet filed against him.

Even the Insurance Company has not summoned the

insured/owner or the rider of the motorcycle to prove

the case. Therefore, it is clear that the offending

vehicle bearing No.KA42-S-0935 was involved in the

accident.

12. The specific case of the claimant is that on

21.5.2017 he was walking along with his son Ramesh

near bus stop Anchepalya, at that time, the rider of

the splendor motorcycle bearing No.KA-42-S-0935

came in a rash and negligent manner and dashed

against the claimant. Even in the evidence of RW-1,

Dr.Shivamadu, he has specifically stated that the

patient was accompanied by one Chikkanna Gowda

and son of the patient was also there. In the

complaint, it is specifically stated that Mr.Ramesh

accompanied the claimant. In the cross examination

of PW-1, there is stray admission that he was alone

walking on NH75 road near bus stop, Anchepalya.

Only on the basis of the stray admission of PW-1 in

the cross examination that he was alone walking on

the road, it cannot be held that the son of the

claimant, Mr.Ramesh had not accompanied the

claimant at the time of the accident. Considering the

materials available on record and evidence of parties,

it is clear that when the claimant was walking along

with his son, Mr.Ramesh near NH75 road near bus

stop Anchepalya, the rider of the offending vehicle

bearing No.KA-42-S-0935 dashed to the claimant and

caused accident. Even though there is discrepancy in

the evidence of the claimant as well as wound

certificate, it is clear from the evidence of the parties

that since claimant was in unconscious stage, he has

not given any statement and since even the son of the

claimant accompanying his father was busy in

providing treatment to his father, one Mr.Chikkanna

Gowda, who also accompanied the claimant's son has

given the statement to the hospital authority.

Considering the materials available on record such as

complaint, FIR, charge sheet, evidence of the parties,

it is clear that the son of the claimant was also

present when the accident occurred.

The Tribunal after going through the mahazar

has rightly held that the rider of the motorcycle had

enough space to avoid the accident by taking the

vehicle to his right side as there was enough sufficient

space to take the vehicle to the right side. Since he

was riding the vehicle at high speed, he came in a

rash and negligent manner, on wrong side and dashed

the claimant. Therefore, it is clear that accident

occurred due to the negligence of the rider of the

offending vehicle.

In respect of the judgment relied upon by the

Insurance Company i.e., MFA 11443/2006 and

connected matters disposed of on 18.7.2012, in the

said case, the complaint has been lodged against

unknown vehicle and they have not furnished the

vehicle number and the specific case in the complaint

is that it is a 'hit and run case'. This court has held

that in a situation where the involvement of vehicle

was not available at the initial stage and

subsequently, if vehicle involved is apprehended

and against which chargesheet is filed, claimant

should have examined the Investigation Officer to

substantiate the same. Whereas in the instant case,

the number of the offending vehicle has been

mentioned at the time of lodging the complaint.

Hence, the above judgment relied upon by the

Insurance Company is not applicable to the facts of

the present case.

13. In view of the above, the appeal is devoid

of merits. Accordingly, it is dismissed.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

I.A.1/2021 does not survive for consideration

and accordingly, it is dismissed.

Sd/-

JUDGE DM