Mr Peetham vs Rahul Sherigar
2022 Latest Caselaw 12418 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF OCTOBER, 2022

                         BEFORE

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

                M.F.A.NO.5381/2014 (MV)

BETWEEN:

MR. PREETHAM
S/O. BHASKAR KOTIAN
AEGD ABOUT 26 YEARS,
R/AT CHITRA NIVASA
BOKKAPATNA, BENGRE
PANAMBOOR,
MANGALURU TALUK,
D.K.DISTRICT-575008.                      ... APPELLANT

        (BY SRI RAVISHANAKR SHASTRY G., ADVOCATE)

AND:

1.     RAHUL SHERIGAR
       S/O. RAMESH SHERIGAR
       AGED ABOUT 33 YEARS,
       R/AT SHILVA HOUSE,
       AIR QUARTERS, URWASTORE,
       KODIKAL ROAD, MANGALURU
       D.K.DISTRICT-575 005.

2.     ICICI LOMBARD GENERAL
       INSURANCE CO. LTD.,
       MAXIMUS COMMERCIAL COMPLEX,
       2ND FLOOR, OFFICE NO.C-22,
       LIGHT HOUSE HILL ROAD,
       HAMPANAKATTA, MANGALURU
       D.K.DISTRICT- 575 001.
       REPRESENTED BY ITS MANAGER
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3.   MR. JEEVAN PEREIRA
     S/O. LATE SEBESTIAN PEREIRA
     AGED ABOUT 32 YEARS,
     R/AT THANNIRU BHAVI,
     BENGRE, PANAMBOOR,
     MANGALURU TALUK,
     D.K.DISTRICT-575 008.

4.   UNITED INDIA INSURANCE CO. LTD.,
     VARANASHI TOWERS,
     MISSION STREET,
     BUNDER, MANGALURU TALUK,
     D.K.DISTRICT
     REPRESENTED BY ITS
     BRANCH MANAGER
     PIN-575001.                      ... RESPONDENTS

           (BY SRI B. PRADEEP, ADVOCATE FOR R2;
            SRI RAVISH BENNI, ADVOCATE FOR R4;
                    R1 & R3 ARE SERVED)

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 24.04.2014
PASSED IN MVC NO.1671/2010 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER, MACT,
D.K., MANGALURU, 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 for the appellant and learned

counsel for the respondent Nos.2 and 4.

2. This appeal is filed challenging the judgment and

award dated 22.04.2014 passed in M.V.C.No.1671/2010 on the

file of the III Additional District and Sessions Judge & MACT-IV,

Dakshina Kannada, Mangaluru ('the Tribunal' for short)

questioning the dismissal of the claim petition.

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 factual matrix of the case of the claimant before

the Tribunal is that, he was proceeding in the motorcycle as a

pillion rider and driver of the car dashed against the motorcycle.

As a result, he fell down and sustained injuries and immediately,

he was shifted to A.J. Hospital and he took treatment as an

inpatient.

5. The claimant, in order to substantiate his claim, he

examined himself as P.W.1 and also examined the Doctor as

P.W.2 in order to prove the disability and got marked the

documents as Exs.P1 to P29. The Insurance Company not

examined any witness and also not marked any documentary

evidence.

6. The Tribunal, after considering both oral and

documentary evidence placed on record, comes to the conclusion

that there was delay in lodging the complaint and the material

discloses that the injured while admitting to the hospital has

given the statement that he sustained injury on account of skid

from motorcycle. The Tribunal also considered the answers

elicited from the mouth of P.W.2 regarding history given by the

injured at the time of admission in the hospital. Hence, the

Tribunal comes to the conclusion that very involvement of the

offending vehicle is doubtful and dismissed the claim petition.

Hence, the present appeal is filed by the claimant.

7. Learned counsel appearing for the appellant would

vehemently contend that, it is the case of the claimant before

the Tribunal that he was proceeding as pillion rider and when the

rider of the motorcycle was trying to overtake the car, the driver

of the car suddenly took the car to the right side and dashed to

the motorcycle and thereby caused the accident. The counsel

would vehemently contend that the Tribunal committed an error

in relying upon the document of Ex.P28 wherein, history was

mentioned as 'skid from bike'. The counsel would submit that

though the document Ex.P28 is marked, the same is not proved

by examining the author of the document. The counsel also

would submit that the Tribunal committed an error in relying

upon the document of Ex.P28 and fails to take note of the

contents of Ex.P2-complaint, wherein the claimant has explained

as to how the accident has occurred and the police investigated

the matter and filed the charge-sheet and the documents,

particularly the sketch and mahazar clearly proves the case of

the claimant. The counsel also would vehemently contend that

the Tribunal comes to the conclusion that the claimant was the

rider and not pillion rider and in order to come to such a

conclusion, no material is placed before the Court and the

statement of the injured was recorded in the hospital itself on

the very next day i.e., 18.10.2010 and there was no delay on

the part of the injured. Hence, it requires interference.

8. Per contra, learned counsel for the respondent No.2

would vehemently contend that, it is the claim of the claimant

that he was a pillion rider and rider was also there along with

him and the said rider has not been examined before the

Tribunal. In order to prove the accident, the counsel also would

submit that in Ex.P2-complaint, it is stated that rider has not

sustained any injury. But, in the cross-examination, he admits

that he sustained fracture but, he does not remember as to

where he took treatment and the statement made by the Doctor

is doubtful to the case of the claimant. The counsel also would

submit that, immediately after the accident, within 45 minutes,

the injured was taken to the hospital and he also admits that

from the place of accident and the hospital, it takes only 30

minutes and he has given the history as 'skid and fall from motor

bike'.

9. It is also his contention that the P.W.2, who brought

the case sheet is also examined before the Tribunal and he has

also given the details that the injured has given the history as

'skid and fall from motorcycle' and as a result, he has sustained

injuries. The evidence of P.W.2 corroborates the case of the

respondent No.2. Even though the respondents have not

examined any witness before Tribunal, the Tribunal has taken

note of the evidence available on record and the admission

elicited from the mouth of the witnesses. Hence, it is a clear

case of implication of the vehicle and the Tribunal also discussed

in detail in Para No.10 and comes to the conclusion that the

involvement of the vehicle has been stage-managed and rightly

answers issue No.1 as 'negative' and issue No.2 as 'affirmative'.

Hence, there are no grounds to interfere with the findings of the

Tribunal.

10. Learned counsel for the respondent No.4 adopts the

argument of the learned counsel for respondent No.2.

11. Having heard the arguments of respective counsel

and also on perusal of the material available on record, the

points that would arise for consideration of this Court are:

(i) Whether the Tribunal has committed an error in coming to the conclusion that the accident has not been proved by answering issue No.1 as 'negative' and the accident occurred on account of negligence on the part of the claimant himself in answering issue No.2 as 'affirmative' and whether it requires interference of this Court ?

(ii) What order?

Point No.(i)

12. Having heard the respective counsel and also on

perusal of the material available on record, it is not in dispute

that the accident occurred on 17.10.2010 at 6.30 p.m. It is the

claim of the claimant that he was proceeding as a pillion rider in

the motorcycle and while overtaking the car, an accident has

occurred. The learned counsel for the claimant mainly contend

that the Tribunal committed an error in answering issue No.1 as

'negative' relying upon the document at Ex.P28. The document

at Ex.P28 is the case sheet of the A.J. Hospital, wherein the

claimant took treatment. On perusal of the case sheet, it

discloses that he had sustained injury to shoulder, wherein

history is also mentioned as road traffic accident at 6.30 p.m.

and on perusal of the history and case sheet of the hospital, the

injured was taken to the hospital at 8.04 p.m., within a span of

1½ hour of the accident, wherein history is given as 'skid from

bike' near Thannirubhavi at 6.30 p.m. on 17.10.2010 and this

document is the immediate document which came into existence

within 1½ hour of the accident and complaint is given on the

next day and the statement is recorded in the A.J. Hospital.

13. The Tribunal also taken note of the fact that hospital

authority has not given any intimation with regard to the RTA

and no material is placed before the Court that on what basis,

the police came to the hospital and there is a delay of 30 hours

in lodging the complaint. No doubt, there is a force in the

contention of the learned counsel appearing for the appellant

that the author of the document Ex.P28 has not been examined,

but the fact that Ex.P28 is the record of the A.J. Hospital is not in

dispute and the Doctor, who has been examined is the

Consultant of the A.J. Hospital through whom the document at

Ex.P28 is marked and the Author has not been examined before

the Tribunal. But, in the cross-examination of P.W.2, it is

categorically elicited that in the history, it is mentioned as 'skid

from bike' and the same is mentioned in Ex.P28. It is also

elicited from the mouth of P.W.2 that, at the first instance, when

the injured came to the hospital, he gave the history and the

same is mentioned in the case sheet and this aspect is also

taken note by the Tribunal.

14. It is also important to note that the injured P.W.1,

who has been examined before the Tribunal has given the

statement before the police in the hospital, wherein in terms of

Ex.P2-complaint, he has stated that the rider of the motorcycle

has not sustained any injury. The P.W.1 was cross-examined

before the Tribunal, wherein he says that he also had sustained

fracture to his hand but, he does not know where he took

treatment and the very evidence of P.W.1 is contrary to his own

document, Ex.P2, wherein he says that he has not sustained any

injury. But, in the cross-examination, he says that he also

sustained fracture to his hand but, he does not know where he

took treatment and also admits that Jeevan Pereira i.e., the rider

of the car has not been admitted to the hospital but, they took

them to the hospital and his uncle came to the hospital within 10

minutes and the distance between the police station and the

hospital is only 3 kms.

15. Having taken note of this evidence, the evidence of

P.W.1 does not inspire the confidence of the Court and the

Tribunal has considered the same and held that the evidence of

P.W.1 not inspires the confidence of the Court. Having taken

note of the fact that immediate history is given as 'skid from

motorcycle', subsequently the same is manipulated as

involvement of two vehicles i.e., motorcycle as well as the car

and the rider of the motorcycle has not been examined before

the Tribunal. As rightly pointed out by the learned counsel for

the respondents, issue No.2 is framed that accident is on

account of sole negligence on the part of the driver of the

motorcycle and the material discloses that it is a case of skid

from motorcycle.

16. When such being the case, I do not find any force in

the contention of the learned counsel appearing for the appellant

that the Tribunal has committed an error in dismissing the claim

petition. The Tribunal has considered both oral and

documentary evidence placed on record, particularly, in page

No.13, discussed in detail the material available on record i.e.,

both oral and documentary evidence and in the absence of

evidence of the respondents and when the evidence of the

injured himself not inspires the confidence of the Court and

when relevant answers are elicited from the mouth of P.Ws.1

and 2, the same can be relied upon by the Tribunal and the

same has been discussed by the Tribunal at Para Nos.10 and 11.

Hence, I do not find any merit in the appeal to come to an other

conclusion that the Tribunal has committed an error in answering

issue No.1 as 'negative' and issue No.2 as 'affirmative'.

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

following:

ORDER

(i) The appeal is dismissed.

Sd/-

JUDGE

ST