Smt K S Latha vs The Tata Aig General Insurance Co ...
2022 Latest Caselaw 13141 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 18TH DAY OF NOVEMBER, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A.NO.2012/2017 (MV-D)


BETWEEN:

1.   SMT. K.S. LATHA
     W/O LATE MANJUNATHA,
     AGED ABOUT 41 YEARS,

2.   KUMARI PRIYANKA M
     D/O LATE MANJUNATHA,
     AGED ABOUT 22 YEARS,

3.   MASTER VIVEK M PRIYANKA
     S/O LATE MANJUNATHA,
     AGED ABOUT 18 YEARS,

     MINOR REPRESENTED BY APPELLANT No.1

     APPELLANTS ARE THE RESIDENTS OF
     BELADARA VILLAGE,
     KORATAGERE TALUK,
     TUMAKURU DISTRICT - 572 129.

     NOW RESIDENT OF NAGANNANAPALYA,
     SIRA GATE, KASABA HOBLI,
     TUMAKURU TALUK
     AND DISTRICT - 572 106.                ... APPELLANTS

           (BY SRI V.B.SIDDARAMAIAH, ADVOCATE)
                                 2



AND:

1.     THE TATA AIG GENERAL INSURANCE CO. LTD.,
       FIRST FLOOR, NO.612,
       80 FEET ROAD, KORAMANGALA,
       BENGALURU - 560 052.
       REP. BY ITS BRANCH MANAGER.

2.     SRI LINGARAJU
       S/O LAKSHMISHAIAH,
       AGED ABOUT 45 YEARS,
       R/O. MARIHEGAVAYYANAPALYA,
       HULIKUNTE POST,
       DODDABALLAPURA TALUK,
       BENGALURU RURAL DISTRICT.            ... RESPONDENTS

             (BY SRI B.PRADEEP, ADVOCATE FOR R1;
                         R2 IS SERVED)


     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.02.2017
PASSED IN MVC NO.629/2013 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND MACT., TUMAKURU,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

                        JUDGMENT

Heard the learned counsel appearing for the appellants and

the learned counsel appearing for respondent No.1-Insurance

Company.

2. This appeal is filed challenging the judgment and

award dated 01.02.2017 passed in M.V.C.No.629/2013 on the

file of the II Additional Senior Civil Judge and MACT., at

Tumakuru ('the Tribunal' for short), dismissing the claim petition

and coming to the conclusion that the claimants failed to prove

the involvement of the vehicle in an accident.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The main contention of the learned counsel

appearing for the appellants/claimants is that the Tribunal

committed an error in not appreciating the evidence in a proper

perspective and failed to take note of the mentioning made in

the very first Hospital that the involvement of the vehicles in an

accident i.e., two motorcycles in terms of Ex.P11. The learned

counsel also would submit that the injured was taken to the

NIMHANS at the first instance. Thereafter, on the next day

shifted to ESI Hospital, where he was an inpatient from

02.05.2012 from 07.05.2012. Subsequently after the discharge

he died on 27.07.2012. The complaint was given by one of the

relative of the claimants. There was a delay in lodging the

complaint, which was given on 02.08.2012. The explanation was

also given, the same was not considered by the Tribunal. Hence,

the Tribunal committed an error.

5. Per contra, learned counsel appearing for the

respondent-Insurance Company would submit that admittedly

the accident was taken place on 01.05.2012. He was an patient

only after a period of 7 days upto 07.05.2012. When he died on

27.07.2022, he was not in the hospital. In between 07.05.2012

till filing of complaint dated 02.08.2012, no explanation was

given by the claimants and only it is an after thought the

complaint was given on 02.08.2012, even though he died on

27.07.2012. The Tribunal after considering all these materials

available on record in detail discussed the same and dismissed

the claim petition in coming to the conclusion that the offending

vehicle was not involved in the accident. Hence, it does not

require any interference of this Court.

6. Having heard the respective counsel and on perusal

of the material available on record, admittedly, the accident was

taken place on 01.05.2012. It is not in dispute that in terms of

Ex.P11, the injured was taken to the hospital on the same day to

NIMHANS, then, he was shifted to ESI Hospital on 02.05.2012.

He was admitted as an inpatient in the ESI Hospital from

02.05.2012 to 07.05.2022 and he was an inpatient only for a

period of one week. Thereafter, complaint was not given. After

the discharge he died on 27.07.2012, at that time, he was not in

the hospital and a complaint was given on 02.08.2022. It is an

after thought. The complaint was not given by the wife and

family members and it is given by a relative. The claimants rely

upon the evidence of P.W.3, who claims that he was an eye

witness to the accident. On perusal of the evidence, the

claimants claim that he witnessed the accident and that the

deceased had sustained the grievous injuries and he claims that

he had informed the same to his brother-in-law one Lakshmi

Kumar over the phone and the police recorded his statement. In

the cross-examination, it is elicited that he has not given any

complaint to the Police and also he admits that the said

deceased Manjunath was his colleague and also he admits that

the Dabaspet Police Station is at the distance of half-a-kilometer

from the accident spot. He admits that in the place of the

accident there are petty shops, Geetha English School and also

bus stand and none of the persons, who were there at the spot

have not given any complaint and also it is noticed by this Court

that even though he claims that the injured was his colleague he

did not shift the injured to the hospital and he has not given the

complaint only claims that he has informed the same to his

brother-in-law. The brother-in-law also has not given any

complaint. The complaint was given by one of the relative that

too after the death of the injured i.e., almost after three months.

Hence, the Tribunal not relied upon the evidence of P.W.1 on the

ground that the evidence of P.W.2 is not credible.

7. Having perused the material available on record, no

doubt, in a settled law if there is any delay, the Court cannot

expect the injured to rush to the Police Station; instead he

should be taken to the Hospital. In the case on hand, he was

discharged on 07.05.2012 itself. Even after the discharge, he

was not given any complaint. Only the complaint was given

after three months, it is an afterthought. When such being the

material available on record, I do not find any error committed

by the Tribunal to accept the arguments of the learned counsel

appearing for the appellants. No doubt, the learned counsel

appearing for the appellants relies upon the document - Ex.P11.

On perusal of Ex.P11, it reveals that the history was given that

the two motorcycles are involved in an accident. In order to

arrive at a conclusion of involvement of this vehicle in the

accident, no substantial material is placed before the Tribunal.

Under the circumstances, I do not find any error committed by

the Tribunal to reverse the finding of the Tribunal to come to an

other conclusion that the offending vehicle was involved in an

accident.

8. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

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