M Siddaiah vs Krishna
2023 Latest Caselaw 4725 Kant

                                          MFA NO.624/2014
                           1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 21ST DAY OF JULY, 2023

                        BEFORE

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

              MFA NO.624 OF 2014 (MV-I)

BETWEEN:

M SIDDAIAH
S/O MARIJOGAIAH, AGED ABOUT 56 YEARS
R/AT NO.110, 3RD A MAIN, ANIL NURSERY ROAD
VENKATAPURA, KORAMANGALA, BANGALORE-42
                                         ... APPELLANT
(BY SRI.MAHADEVA SWAMY P., ADV.)

AND:

1.     KRISHNA
       S/O CHOWDEGOWDA, MADARAHALLI
       VILLAGE, MADDUR TALUK, MANDYA DIST-01

2.     JAGAN.G
       S/O GANESH, NO.14, NEW BUILDING
       2ND MAIN ROAD, RAMCHANDRAPURAM
       BANGALORE-21

3.     THE MANAGER
       NATIONAL INSURANCE CO. LTD.
       REGIONAL OFFICE, NO.144
       SUBBARAM COMPLEX, M.G.ROAD
       BANGALORE-01                      ... RESPONDENTS

(BY SRI.O.MAHESH, ADV. FOR R3;
    VIDE ORDER DATED 27.02.2018
    NOTICE TO R2 IS HELD SUFFICIENT;
    R1 SERVED AND UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.08.2013
PASSED IN MVC NO.6553/2008 ON THE FILE OF THE XIII
ADDITIONAL SMALL CAUSES JUDGE & MEMBER, MACT,
                                                     MFA NO.624/2014
                                   2

BANGALORE,    DISMISSING                 THE      PETITION       FOR
COMPENSATION.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON 03.07.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

The petitioner has challenged the judgment

dated 05.08.2013 passed by the XIII Additional

Small Causes Judge and Member, MACT ('the

Tribunal' for short) in M.V.C.No.6553/2008, in

dismissing the claim petition filed under Section 166

of the Motor Vehicles Act, 1988.

2. For the sake of convenience, the parties will

be referred to as per their status before the Tribunal.

3. Briefly stated the facts are that, the

petitioner being a native of D.K.Halli while he was

standing near a petty shop of the said village at 8.00

p.m. on 10.05.2008, motor cycle bearing No.KA-

02/EL-1879 has dashed and injured him.

Immediately he was shifted to Victoria Hospital, MFA NO.624/2014

Bangalore, for treatment. The petitioner seeking

compensation has moved the Tribunal. The claim

was opposed by the respondent. After taking the

evidence, the Tribunal by its judgment dated

24.11.2009, allowed the claim petition and awarded

compensation of Rs.2,23,020/-. Aggrieved by the

same, the Insurance Company has filed an appeal

before this court numbered in M.F.A.No.2581/2012

and so also, the petitioner filed another

M.F.A.No.7673/2011 seeking enhancement. By

common judgment dated 13.03.2013, this court set

aside the order of the Tribunal observing that the

issue No.1 regarding negligence has been decided

relying on the evidence of the medical officer at

Victoria Hospital even though eye-witnesses are

available in the form of Puttaswamy Gowda, he has

not been examined, the matter was remanded to the

Tribunal to consider the claim petition regarding the

negligence afresh with liberty to the parties to

adduce further evidence. After the remand, the MFA NO.624/2014

parties have further led the evidence whereas, on

behalf of the petitioner, the eyewitness Puttaswamy

Gowda has been examined as PW-3. After

appreciating the evidence, the Tribunal passed the

impugned judgment holding that a 'hit and run' case

is being converted into an accident by falsely

implicating the motor cycle in question and

dismissed the claim petition. Aggrieved by the

same, the petitioner has filed this appeal on various

grounds.

4. I have heard the arguments of

Sri.P.Mahadeva Swamy, learned counsel for the

petitioner and Sri.O.Mahesh, learned counsel for

respondent No.3/insurer.

5. It is the contention of the learned counsel for

the petitioner that PW-3/Puttaswamy Gowda has

given a clear evidence having witnessed the accident

and shifting of the injured to the Victoria Hospital.

Learned Counsel also contended that the distance MFA NO.624/2014

between the place of accident to the Victoria Hospital

is 78 kilometers as Dalawai Kodihalli is a border

village of Kanakapura taluk and for this reason, the

injured was not taken either to Government Hospital,

D.K.Halli or to Kanakapura. There is no malice or

false implication of the motor cycle, but the Tribunal

on the guise that the matter has been remanded by

the High Court carried away in passing the impugned

judgment, which calls for interference.

6. Per contra, learned counsel for the

respondent/insurer has contended that when the

petitioner has suffered injury in an accident, the first

and foremost conduct of the parties is to take him

immediately to a nearest hospital, but the petitioner

was taken to Victoria Hospital. The accident was at

8.00 p.m. and by 10.40 p.m. itself, the petitioner

was at Victoria Hospital, which is improbable.

Though the petitioner claims that one Puttaswamy

Gowda is an eyewitness, his evidence did not point MFA NO.624/2014

out that he has filed any Police complaint or

informed the Police about the accident or the vehicle

number. The rider of the motor cycle is said to be of

the same village, but his name was not divulged to

anybody. There is an inordinate delay in filing the

complaint and a 'hit and run' case has been

converted into an accident involving the motor cycle

in question instead of prosecuting the vehicle, which

caused the accident. In connivance of the Police, the

motor cycle in question has been planted. On

analyzing the evidence placed by both parties, the

Tribunal has rightly recorded its finding that there

was no genuine accident involving this motor cycle,

the motor cycle has been implicated in the case ten

days after the accident and thereby FIR was filed on

20.05.2008. During this 10 days, much water has

been flown and nowhere the vehicle in question was

made known to the world that it has caused accident

to the petitioner. Hence, the order of dismissal is MFA NO.624/2014

based on the legal evidence and it is sustainable and

he has supported the impugned judgment.

7. I have given my anxious consideration to the

arguments advanced on behalf of both parties and

perused the materials on record.

8. This is the second round of litigation. At first

round, the claim of the petitioner was allowed

awarding compensation of Rs.2,23,020/- and this

has been assailed by the Insurance Company, this

Court has remanded the matter facilitating the

parties to examine the eyewitness Puttaswamy

Gowda by keeping open all the contentions of the

parties and the Tribunal to decide the matter afresh

in accordance with law. After the remand, on behalf

of the petitioner, eyewitness Puttaswamy Gowda was

examined and the matter was heard afresh and

claim petition came to be dismissed.

MFA NO.624/2014

9. The Tribunal has recorded its reasoning for

dismissal that the petitioner in witness box asserts

that Puttaswamy Gowda is unknown to him and he

was not with him when the accident took place. He

was not aware as to who gave the vehicle number,

which caused the accident. The distance between

the place of accident to Victoria Hospital is 128

kilometers. In between there are hospitals for

treatment. But the injured was straightaway

brought to Victoria Hospital and in the hospital, they

have stated the history of the injury as accident, but

the details of the rider or the motor cycle number

was not disclosed. According to the petitioner, after

the accident, the petitioner went away and stopped

at a distance and he identified him as one Nagesh of

his village. It is PW-3, who brought the injured to

the Victoria Hospital in a vehicle. When the

petitioner is not knowing Puttaswamy Gowda and he

was not with him at the time of accident, how

Puttaswamy Gowda brought him to the hospital is MFA NO.624/2014

not explained. For this reason, the Tribunal raised a

doubt that a prudent man cannot assume bringing

the petitioner to Victoria Hospital when there are

other hospitals available nearby. The accident took

place in the village of the petitioner, but an unknown

person/PW-3 brings him to the hospital and the

children of the petitioner have not shifted or

accompanied him to the hospital is one of the

doubtful circumstances. The Tribunal also recorded

that PW-3 has deposed to help the petitioner in

getting the compensation. The Tribunal referring to

the evidence of PW-3 recorded its finding that he

was a rustic villager and he noted down the vehicle

number in a chit and keeping a chit with him at the

time of his evidence is very doubtful. There is a

delay of 10 days in lodging the complaint and till

then, neither the name of rider nor the motor cycle

number was known to anybody including the medical

officer. Even though the petitioner was admitted to

Victoria Hospital, complaint was filed after ten days.

MFA NO.624/2014

Spot mahazar was drawn on 20.05.2008, but still

after ten days, glass pieces of the motor cycle were

traced at the spot. Ex.R3/MLC extract refers that

one Basavaraj admitted the petitioner to the

hospital, not PW-3. The history was furnished that

he was hit by bike at 8.00 p.m. on 10.05.2008 and

ultimately the Tribunal was of the opinion that

though the petitioner has suffered an injury in an

accident, it is a 'hit and run' case. In order to

facilitate the petitioner to make a claim, the rider

and the motor cycle of the same village were set up

and falsely implicating the motor cycle cannot be

ruled out. Under these circumstances, the Tribunal

came to the conclusion that it is not a fit case for

accepting that the motor cycle bearing No.KA-02/EL-

1879 caused the accident and therefore, no liability

can be fastened against the respondent/insurer to

pay compensation.

MFA NO.624/2014

10. The material on record did point out that

soon after the accident, the rider did stop for a while

and went away; at that time, nobody knew the

vehicle number as well as the rider; PW-3 was not at

the spot and according to him, he was standing near

the shop at a 40 feet distance and only after the

accident, he came to the spot. Under such

circumstances, it is surprising to note that where

was the occasion for him to record the registration

number of the motor cycle at 8.00 p.m. It is

interesting to note that, a person having noted the

vehicle number still keeping that chit with him is a

strange conduct of a prudent man. He has not

lodged any complaint to the Police and he was not

aware as to who filed the complaint. When PW-3

visited the hospital, he knew very well the rider and

vehicle number, but the history furnished as 'hit by a

bike'. This information was given because neither

the petitioner nor the attendant, who brought him,

were knowing the details of the rider or the vehicle MFA NO.624/2014

number. After admitting the petitioner to the

hospital in the very same car, PW-3 returned back to

the village. These are all the conducts which

demonstrate that the evidence of PW-3 is not

inspiring the confidence of the court, but he has

been cited as an eyewitness in the charge sheet

under Ex.P2. Ex.P3 is the wound certificate. So also

Exs.P75 to P77 are the case sheets of the Victoria

Hospital and Exs.P8 to P10 are the discharge

summaries of follow-up treatment. In none of these

records, there is any reference to vehicle number nor

the name of the rider. If really the rider was

belonging to the same village, it ought to have been

mentioned that 'so and so' has hit his bike on the

back of the petitioner at the time of accident. But

history so furnished to the hospital is also not clear.

11. It is interesting to note that the accident

took place on 10.05.2008 at 8.00 p.m. On the very

day at about 10.40 p.m., the petitioner was admitted MFA NO.624/2014

to Victoria Hospital. The distance between the place

of accident and the Victoria Hospital, as deposed by

witnesses, is 78 kilometers and not 128 kilometers.

In between Victoria Hospital and the place of

accident, they could have taken the petitioner for

first aid at Government Hospital, Kanakapura, even

after reaching Bangalore, there are several hospitals

from the entry of Bangalore City to Victoria Hospital.

If really there is genuineness of the accident, the

natural conduct of a human being is to go for a

nearest hospital to get first aid and thereafter, if

necessary, they can go to higher hospital for better

treatment. Here, they came straightaway to Victoria

Hospital. The finding recorded by the Tribunal that

the children of the petitioner has not accompanied

him or admitted him to the hospital can be found

explanation as the petitioner though shown as a

resident of D.K.Halli, he is a resident of Venkatapura

of Bangalore City. When his family resides in

Bangalore, it may not be possible for them to come MFA NO.624/2014

to D.K.Halli to take the injured to hospital. But when

the petitioner was taken to Victoria hospital, his

family members were not present. When PW-3 is

known to the petitioner and his family members, it

would have been informed to them and before the

petitioner reaching the hospital, his family members

ought to have to be in the hospital to facilitate him

for his admission. These are all circumstances which

create a doubt naturally in the mind of a prudent

man. If the accident is genuine, his fellow villagers

or his family members ought to have filed complaint

on the very next day, if they were aware of the

name of the rider and the motor cycle. For this

reason, they have waited for 10 days to identify the

rider and also the motor cycle. During this period,

much water has been flown in the conduct of the

petitioner and his family members.

12. It is pertinent to note that the Investigating

Officer has not been examined explaining the delay MFA NO.624/2014

in filing the complaint, so also furnishing of the

details of the rider and the motor cycle. After ten

days of the accident, the petitioner without knowing

the rider and also the motor cycle gives its

particulars. Hence, the material on record did

explain and supports the reasons recorded by the

Tribunal that after 10 days of the accident, there is a

chance of false implication of the motor cycle for the

sake of compensation, which is facilitated by the

fellow members of the village. Hence, I do not find

any error committed by the Tribunal in appreciating

the evidence. The petitioner might have sustained

injuries, but after ten days, conveniently the rider of

the motor cycle has been roped in. Though the

Insurance Company has not challenged the charge

sheet, they are not the affected party to challenge

the charge sheet as the defence is available to them

to contest their liability to pay the compensation.

The Tribunal passed the judgment awarding

compensation of Rs.2,23,020/- at the first instance MFA NO.624/2014

simply accepting the medical evidence. The evidence

on record speaks contrary that the involvement of

this motor cycle is doubtful and the delay of ten days

in filing the complaint has not been explained by the

petitioner. Hence, the inordinate delay in filing the

complaint creates a doubt in the mind of the Tribunal

in recording its finding, which is based on the legal

evidence available on record. Hence, there are no

reasons to interfere with the finding recorded by the

Tribunal. Hence, the appeal is devoid of merits and

deserves to be dismissed. In the result, the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

KNM/-

CT:HS