Abdul Gafoor Ibrahim vs Manjunath Jattappa Naik, ...
2022 Latest Caselaw 12048 Kant

                            -1-




                                       MFA No. 23969 of 2010




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

     DATED THIS THE 22ND DAY OF SEPTEMBER, 2022

                          BEFORE
          THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 23969 OF 2010             (MV-I)



BETWEEN:

     ABDUL GAFOOR IBRAHIM,
     AGED ABOUT 34 YEARS, OCC:ELECTRICAL SUPERVISOR,
     R/O.NAVAYAT COLONY, AMMENUDDIN ROAD,
     TQ:BHATKAL

                                                   ...APPELLANT

(BY SRI. D.T.HEBBAR, ADVOCATE)

AND:

1.   MANJUNATH JATTAPPA NAIK,
     R/O.HURALISAL,
     TQ: BHATKAL

2.   UNITED INDIA INSURANCE CO, LTD,
     BRANCH OFFICE : 66/1, NH-17,
     BHATKAL.

                                                ...RESPONDENTS

(SRI. S.S.KOLIWAD, ADVOCATE FOR R2
R1 SERVED)

       THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.ACT,
1989, AGAINT THE JUDGMENT AND AWARD DATED 30.07.2010
PASSED IN M.V.CNO.121/2009 ON THE FILE OF THE ADDITIONAL
MACT, HONAVAR (ITINERARY COURT AT BHATKAL) DISMISSING THE
PETITION FILED UNDER SECTION 166 OF M.V.ACT.
                              -2-




                                       MFA No. 23969 of 2010

     THIS APPEAL COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard the appellant's counsel and also the counsel

appearing for respondent No.2.

2. The factual matrix of the case of the claimant

before Tribunal is that, he was standing on the side of the

NH-17 road at Suvarnagadde in Kumta taluk waiting for

the vehicle. At that time, the respondent No.1 came from

Kumta side towards Honavar on the motorcycle bearing

No.KA-47/H-1697 in a rash and negligent manner and due

to his negligence, he lost control over the vehicle and the

said motorcycle dashed to the petitioner. Due to the said

impact, the petitioner sustained grevious injuries.

Immediately, he was shifted to RNS Hospital,

Murudeshwar, wherein first aid treatment was given and

thereafter, as per the advise of the Doctor, he was shifted

to Tejasvini Hospital, Mangalore, wherein he was treated

MFA No. 23969 of 2010

from 08.12.2008 to 20.12.2008 and hence, made the

claim before the tribunal.

3. The Insurance company after service of notice

appeared and filed objection statements denying all

averments and without prejudice to the contentions, took

the contention that, as per the information gathered, there

was no such accident occurred on the said day in the said

spot and the petitioner and the first respondent have

colluded with each other and formed the incident narrating

and with the assistance of the concerned police have filed

private complaint and FIR is registered and thereafter

investigated the matter and filed charge-sheet and hence,

it is clear that it is the case of concoction.

4. The claimant in order to substantiate his case,

examined himself as P.W.1 and also examined two

witnesses as P.Ws.2 and 3 and got marked documents as

Exs.P.1 to P.71. On the other hand, respondents have not

examined any witnesses, however got marked copy of

policy as Ex.R.1.

MFA No. 23969 of 2010

5. The Tribunal after considering both the oral and

documentary evidence on record, dismissed the claim

petition and comes to the conclusion that private

complaint was filed on 07.04.2009 and alleged

panchanama was prepared on 05.04.2009 i.e. two days

earlier to the registration of the case and the same is

discussed in para 10 of the judgement of the Tribunal and

also discussed with regard to evidence of P.W.3 who

claims to be an eyewitness and his evidence is also

discarded. Having considered both oral and documentary

evidence on record, even in the absence of respondentss

evidence, comes to the conclusion that the accident has

not been proved by answering issue No.1 as negative.

Hence, the present appeal is preferred by the claimant.

6. The main contention of the counsel for the

claimant is that the Tribunal has committed an error in

dismissing the complaint on the ground that there was

delay in filing the complaint and also counsel contends

that P.W.3 who is an eyewitness came and deposed before

the Tribunal that he witnessed the accident and even the

MFA No. 23969 of 2010

Tribunal has not accepted the document at Ex.P.6, under

which respondent No.1 pleaded guilty and hence, it

requires interference.

7. Counsel also relied upon the judgement of the

Apex Court in the case of Ravi vs. Badrinarayan and

Others in Civil Appeal No.1926/2011, wherein in para 20

it is held that delay in filing the FIR cannot be a ground to

doubt the claimant's case and also discussed in judgement

that knowing the Indian conditions as they are, we cannot

expect a common man to first rush to the police station

immediately after an accident and human nature and

family responsibilities occupy the mind of kith and kin to

such an extent that they given more importance to get the

victim treated rather than to rush to the police station.

8. Counsel also relied upon the judgement of

Division Bench of this Court reported in 2020 Supreme

(KAR) 828 in the case of Sunil vs. Vajamuddin

Sahabuddin Hawaldar and brought to notice of this

Court para 14, wherein it is held that mere delay in

MFA No. 23969 of 2010

lodging the FIR would not ipso facto result in disbelieving

the entire case of the complainant in every case. The

person who takes plea of delay must necessarily explain to

the Court that the time lapsed i.e. time from incident till

lodging of the FIR must have been utilized for the purpose

of concocting a false case. Insurance Company did not

choose to investigate the matter through private

investigator attached to the company and place the same

before the Court.

9. Per contra, learned counsel for respondent

No.2-Insurance Company submits that there was delay of

more than 4 months in filing the complaint. He submits

that the accident was occurred on 07.12.2008 and private

complaint was filed on 07.04.2009 and FIR was registered

on the same day but the panchanama was drawn two days

prior to the private complaint i.e. on 05.04.2009 and the

same is also discussed by the Tribunal in para 10 of the

judgement.

MFA No. 23969 of 2010

10. Counsel further submits that even according to

the claimant he took treatment at Tejasvini hospital from

08.12.2008 and discharged on 20.12.2008 and there is no

explanation on the part of the claimant as to what

prevented him in filing the complaint with police station

immediately after the discharge. Instead of that, an

ingenious method is adopted by filing private complaint

before the Court and got it referred the matter and also

respondent No.1 went and pleaded guilty before the Court

and hence, it is clear that it is a case of collusion between

respondent No.1 and the claimant. Hence, the Tribunal

taking into note of all these materials, rightly comes to the

conclusion that the accident has not been proved and

hence, no grounds are made to set aside the order.

11. Having heard the respective counsel and also

on perusal of the material available on record and in view

of the principles laid down in the judgements referred

supra by the counsel for the appellant, the following points

would arise for consideration:

MFA No. 23969 of 2010

i. Whether the Tribunal has committed an error in dismissing the claim petition and whether it requires interference of this Court?

ii. What order?

12. Regarding Point No.1: It is not in dispute that

the accident has taken place on 07.12.2008 and

immediately he was taken to RNS hospital at Murdeshwar

and on perusal of the RNS hospital records, no doubt it is

mentioned that it was a case of road traffic accident and

on the same day he was inpatient for a day and on the

next day he was shifted to Tejasvini hospital on

08.12.2008. In both the hospital it is mentioned as history

of road traffic accident but in the cross-examination of

P.W.1, he categorically admits that he has not given any

intimation to the police and even also not intimated the

doctor and the same is also discussed by the Tribunal in

the impugned judgement. Apart from that, counsel for the

respondent-Insurance Company also brought to notice of

this Court that the accident was occurred on 07.12.2008

and he was inpatient up to 20.12.2008. No effort is made

MFA No. 23969 of 2010

to file a complaint after his discharge also, but in the

cross-examination, he categorically says that though he

was aware of the fact that accident has to be informed to

the police, he did not inform the same.

13. Further, in the cross-examination, he admits

that when he took treatment in the said hospital stated

that injuries suffered by him are due to motorcycle

accident and he did not even intimate doctor at RNS

hospital and no MLC has been registered by the respective

hospital and also no intimation is given to the hospital, but

private complaint is filed on 07.04.2009 after more than 4

months and FIR was registered on the same day but

panchanama was drawn on 05.04.2009 itself i.e. two days

earlier to the registration of the private case and the same

is discussed in para 10 of the impugned judgement. Apart

from that in para 11, the Tribunal discussed the evidence

elicited from the mouth of P.W.1 and P.W.1 in the cross-

examination categorically says that he has studied up to

B.com and he knew that he should inform the police

regarding the accident immediately after the accident and

- 10 -

MFA No. 23969 of 2010

inspite of it he has not informed the same. Other witness

examined as P.W.3 claims to an eyewitness to the

accident, but he categorically admits in the cross-

examination that he did not give any complaint but claims

that police came and enquired him within two days and

the same is also falsifies that particularly when the

complaint was not given and case was registered based on

the private complaint on 07.04.2009 and when such being

the case, question of police coming and enquiring him

within 2-3 days of accident does not arise.

14. Having taken note of the same, the Tribunal in

detail discussed in para 12 also with regard to evidence of

P.W.3 and rightly comes to the conclusion that the

evidence on record does not inspires confidence of the

Court in coming to the conclusion that the alleged vehicle

has been involved in the accident. No doubt, the claimant

has relied on Ex.P.6 under which respondent No.1 himself

pleaded guilty through an advocate and he did not go to

Court but by invoking Section 205 of Cr.P.C. pleaded guilty

through an advocate and the same is discussed in para 13

- 11 -

MFA No. 23969 of 2010

and 14 by giving anxious consideration to the material on

record and rightly comes to the conclusion that the very

accident has not been proved and also involvement of the

vehicle is also not been proved.

15. The Tribunal also taken note of the fact that

respondents have not adduced evidence and comes to the

conclusion that the same cannot be a ground to contend

that claimant's case has been proved and has assigned

reasons while dismissing the claim petition and hence, I do

not find any error committed by the Tribunal in

appreciating both oral and documentary evidence.

16. The counsel for the appellant has relied upon

two judgements. It is not in dispute with regard to the

principles laid down in the above judgements. It is also

repeatedly held and it is also settled law that the claimant

should be taken to the hospital immediately after the

accident and cannot rush to the police station, but here it

is a case, wherein even after the treatment at the hospital

and discharge from the hospital on 20.12.2008, no

- 12 -

MFA No. 23969 of 2010

complaint was given and as an afterthought a private

complaint was filed and got the FIR registered and prior to

the registration of the complaint panchanama was drawn.

Hence, it is clear case of collusion between the police,

claimant and respondent No.1. Hence, point No.1 is

answered in negative.

17. Regarding point No.2: In view of the

discussions made above, I pass the following:

ORDER

Appeal is dismissed.

The registry is directed to transmit the trial court

records forthwith.

Sd/-

JUDGE

SVH,SH