Legal Manager vs M Madappa
2022 Latest Caselaw 11897 Kant

                                     MFA No.5032 of 2012
                          1
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 16TH DAY OF SEPTEMBER, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

           M.F.A.No.5032 OF 2012 (MV-I)

BETWEEN:

LEGAL MANAGER
ICICI LOMBARD GIC LTD.,
#89, II FLOOR, SVR COMPLEX,
HOSUR MAIN ROAD,
MADIVALA, BANGALORE - 68                 ... APPELLANT

(BY SRI. B.PRADEEP, ADVOCATE)

AND:

1 . M MADAPPA
    S/O CHINNAPPA GOUNDER
    NOW AGED ABOUT 43 YEARS
    R/O NO.19, GOVT SCHOOL ROAD,
    KONANAKUNTE,
    BANGALORE-62

2 . MURUGAN
    S/O GOPAL
    MAJOR
    R/A MYLASANDRA VILLAGE,
    BEGUR POST,
    BANGALORE - 68
                                        ... RESPONDENTS
(R1 & R2 SERVED AND UNREPRESENTED)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 29TH DAY OF FEBRUARY 2012 PASSED BY THE
MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL
CAUSES, BANGALORE CITY IN MVC NO.677/2011 AND TO
PASS SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE
                                          MFA No.5032 of 2012
                               2
COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES
OF THE CASE, INCLUDING THE COSTS, IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS MFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.09.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

This is an appeal filed under Section 173(1) of

the Motor Vehicles Act, 1988 (hereinafter referred to

as 'the Act' for brevity) by the appellant/Insurer,

challenging the judgment and award dated

29.02.2012 passed in M.V.C.No.667/2011 by the

Motor Accident Claims Tribunal, Court of Small

Causes, Bengaluru City, (hereinafter referred to as

'the Tribunal' for brevity).

2. Brief facts of the case is as follows:

The petitioner before the Tribunal (first

respondent herein), on 14.10.2010 at about 2.00

p.m., was proceeding on his Kinetic Honda bearing

registration No.KA-05/EX-3529 and when he reached

near Vaddarapalya, a lorry bearing registration MFA No.5032 of 2012

No.KA-32-5813 came in a rash and negligent

manner and dashed against the Kinetic Honda of the

petitioner, as a result of which, the petitioner

suffered fracture of right ankle and he was admitted

to Rajashekar hospital for treatment. Claiming

compensation for the injuries he has sustained in the

accident, he has filed a claim petition under Section

166 of the Motor Vehicles Act, 1988.

3. Before the Tribunal, the claim was contested

by the insurer alone. Before the Tribunal, the

petitioner in order to prove his case examined

himself and the treating Doctor as PW-1 and PW-2

and relied upon Exs.P1 to P10 and on behalf of the

insurer, one witness was examined as RW-1 and

relied upon Exs.R1 and R2.

4. By the impugned judgment and award, the

Tribunal has awarded compensation of Rs.1,32,400/-

with 6% interest per annum fastening liability on the MFA No.5032 of 2012

insurer. Aggrieved by the same, the insurer is

before this court.

5. The appeal is filed on the following grounds:

The petitioner/claimant has reported before the

hospital that he had a skid fall from the bike when

he was admitted to Rajashekar Hospital, wherein

before the Tribunal he has made a claim that a lorry

bearing registration no.KA-32-5813 had hit him, as a

result of which, he sustained injuries. The fact

alleged is contrary to the evidence placed. The

petitioner has made fraud, the Tribunal failed to

notice the same, the Tribunal failed to note the

settled principle of law that the noting of the Doctor

should be looked into and mere filing of charge sheet

is not a decisive factor. There is a delay of 10 days

in filing the FIR, involvement of the lorry in question

was not proved before the Tribunal and ignoring all

these aspects, the Tribunal has passed the award,

fastening liability against the Insurance Company

which needs interference.

MFA No.5032 of 2012

6. Respondent Nos.1 and 2 being the claimant

and owner of the vehicle, though served but

unrepresented.

7. It has been argued by the learned counsel

for the appellant/insurer that soon after the accident,

the petitioner was taken to Rajashekar Hospital

where he has given a history of the accident on the

very day that he skidded from his Kinetic Honda and

fell on the road resulting in the injuries for which he

was treated by the Rajashekar hospital. On

24.10.2010, lorry in question has been invented and

a false complaint has been filed and thereby by

misleading the Tribunal, claim has been filed and

inspite of the evidence explaining the alleged

accident as 'skid and fall from the Kinetic Honda', the

defence is ignored, the evidence is not considered by

the Tribunal and same is against the settled

principles of law.

MFA No.5032 of 2012

8. To support his contention, the learned

counsel for the appellant placed reliance on

Ex.P1/FIR, Ex.P6/Discharge Summary and

Ex.R2/MLC register extract and also spot sketch as

Ex.P3. As contended by the learned counsel for the

appellant, there is a reference in Ex.P6/Discharge

Summary issued by Rajashekar hospital, which is

relied upon by the petitioner, which refers as follows:

"This 50 yr old male was admitted with an alleged h/o RTA, skid and fell down from the bike on 14/10/2010 at around 3 pm and sustained injury to right knee, right ankle and left elbow."

9. Ex.R2 is the MLC Register extract issued by

the Rajshekar Hospital wherein the history of the

accident is referred to as follows:

"Alleged h/o RTA, skid and fall from the bike near NICE road Pinkipura on 14/10/2010 at around 3 pm. Sustain injury to right knee, right ankle."

MFA No.5032 of 2012

10. From the reading of Ex.P6 and Ex.R2, the

history of the accident met with by the petitioner did

point out a different history. Hence, it is very

relevant to consider the evidence of the Doctor,

whom the petitioner has relied upon to prove the

disability. PW-2 Dr.Shivarajaiah is the Consultant

Orthopedic Surgeon at Rajshekar hospital. He has

given evidence in the form of affidavit evidence that

having treated the petitioner at Rajashekar hospital

and also assessing the disability of 8% for the whole

body on account of the ankle injuries sustained by

the petitioner. During the course of cross-

examination, the Doctor has specifically admitted

and his statement is as follows:

"The patient has intimated to me about the RTA. As per case sheet recorded the petitioner has intimated to me that, he skids and fell from the scooter."

MFA No.5032 of 2012

11. Doctor has also admitted in the cross

examination that "It is true to say that if the patient

is fell down and slipped himself, he may sustain

injuries as mentioned in the wound certificate. Our

hospital registered the MLC." Hence, PW-2 has not

been treated as hostile, nor there is any cross-

examination on behalf of the petitioner. In North

West Karnataka Road Transport Corporation -

vs- Gourabai and Others1, the Hon'ble Apex Court

held at para 3 that:

"3. The effect of the evidence of the doctor and Exhibit R-1 does not appear to have been looked into by MACT and the High Court. MACT did not place reliance on the document Ext.R-1 on the ground that the brother of the injured stated that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct."

12. As discussed above, the medical evidence

did establish that the injured sustained injury due to

(2009) 15 SCC 165 MFA No.5032 of 2012

skid and fall from his Kinetic Honda.

13. Ex.P3 is the sketch pertains to the accident

spot, which refers Begur-Koppa road, but in the said

sketch, there is no mention about existence of NICE

road, wherein the complaint and also the charge

sheet allege that the accident took place near NICE

road at Vaddarapalya. Hence, there is a clear

contradiction as to the place of accident and also the

history of the accident spoken to by PW-2/the

treating Doctor, did point out that the petitioner has

sustained injuries due to skid and fall from his

Kinetic Honda. If the medical evidence speaks so,

then the petitioner has to prove the accident as

claimed that the lorry bearing registration No.KA-32-

5813 hit against his Kinetic Honda. The petitioner

though admits that front portion of Kinetic Honda

was damaged, but he has not produced any

document to show any damage caused to his Kinetic

Honda. Thus, the evidence relied upon by the MFA No.5032 of 2012

petitioner himself did point out that the petitioner

has sustained ankle injury on account of skid and fall

from his own Kinetic Honda.

14. In support of his contentions, the appellant

has relied upon the judgment of this court in the

matter of New India Assurance Co.Ltd. -vs-

Venkataramana2 to the effect that mere filing of

charge sheet is not a decisive factor. The evidence

on record did point out different reason for the injury

sustained. Hence, mere filing of charge sheet

against the driver of lorry has no consequence.

15. I have carefully perused the impugned

judgment wherein all these aspects have been

placed before the Tribunal wherein the Tribunal

ignored the said aspects taking into consideration

that the claim under Section 166 of the M.V.Act is a

beneficial legislation. Under the said guise, the

Tribunal has carried away ignoring the fact that the

petitioner has sustained injury in his own motor

2006 ACJ 1778 KAR MFA No.5032 of 2012

vehicle by skid and fall and inspite of the accident

took place on 14.10.2010, he did not file any

complaint till 24.10.2010 for the reason that his own

vehicle has been involved. During the said period,

much water has been flown, local friends have come

to the aid of the petitioner. Hence, the claim based

upon different set of story, which has no evidence to

support.

16. It is the duty of the Tribunal to consider the

genuineness of the accident and history of the injury

that the petitioner has sustained before proceeding

to assess the claim. But in the instant case, there is

a total miscarriage of justice on account of lack of

application of mind on the part of the Tribunal and

therefore, the petitioner is not entitled to claim any

compensation as against the lorry. If he has to

claim anything, he should claim against his own

vehicle. However, he himself is the owner of the

Kinetic Honda, he cannot claim compensation against

his own fault and against him only and therefore, the MFA No.5032 of 2012

impugned award passed by the Tribunal suffers from

illegality and hence, calls interference. Hence, the

claim made by the petitioner before the Tribunal is

liable to be dismissed.

In the result, the appeal deserves to be

allowed.

Accordingly, the appeal is allowed. The

impugned judgment and award dated 29.02.2012 in

M.V.C.No.677/2011 passed by the Motor Accident

Claims Tribunal, Court of Small Causes, Bengaluru

City, is hereby set aside.

The petition filed by the petitioner/1st

respondent herein under Section 166 of the Motor

Vehicles Act is hereby dismissed.

Any statutory deposit, if made by the appellant,

shall be returned to the appellant.

Sd/-

JUDGE KNM/-