Paramma W/O Veerabhadrappa ... vs Nabisab S/O Gannusab Ashjckhan
2023 Latest Caselaw 3223 Kant

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                                                     MFA No.21817 of 2011




             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                     DATED THIS THE 14TH DAY OF JUNE, 2023

                                       BEFORE

                        THE HON'BLE MRS. JUSTICE M.G.UMA

            MISCELLANEOUS FIRST APPEAL NO.21817/2011 (MV-I)

            BETWEEN:

            SMT.PARAMMA W/O. VEERABHADRAPPA AMBALI,
            AGE: 49 YEARS, OCC: AGRICULTURE COOLIE,
            R/O: CHIKKUMBI, TALUK: SAUNDATTI,
            DISTRICT: BELGAUM.
                                                              ...APPELLANT
            (BY SRI H. M. DHARIGOND, ADVOCATE)

            AND:

            1.    NABISAB S/O. GANNUSAB ASHJCKHAN,
                  AGE: MAJOR, OCC: BUSINESS,
                  R/O: KONNUR, TALUK: NARGUND,
                  DISTRICT: GADAG.

            2.    BAJAJ ALLIANZ GENERAL INSURANCE
                  COMPANY LIMITED,
                  BAJAJ AUTO FINANCE LTD., AKURDI,
Digitally         PUNE - 411 035, THROUGH ITS DIVISIONAL
signed by
VINAYAKA          MANAGER/REGIONAL MANAGER, 1ST FLOOR,
BV                VIVEKANANDA CORNER, DESAI CROSS,
                  CLUB ROAD, HUBLI, DISTRICT: DHARWAD.
                                                           ...RESPONDENTS
            (BY    NOTICE TO R1 SERVED;
                   SRI S.K. KAYAKAMATH, ADVOCATE FOR R2)

                  THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
            AGAINST THE JUDGMENT AND AWARD DATED 16.04.2010, PASSED
            IN M.V.C.NO.96/2007 ON THE FILE OF THE MEMBER, ADDITIONAL
            MOTOR ACCIDENT CLAIM TRIBUNAL, SAUNDATTI, DISMISSING THE
            PETITION FILED UNDER SECTION 166 OF MOTOR VEHICLES ACT.

                 THIS MFA, COMING ON FOR FINAL HEARING, THIS DAY, THE
            COURT DELIVERED THE FOLLOWING:
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                                          MFA No.21817 of 2011




                          JUDGMENT

The claimant in MVC.No.96/2007 on the file of the

Additional M.A.C.T, Saundatti, ("the Tribunal" for short) is

before this Court impugning the judgment and award

dated 16.04.2010 dismissing the claim petition with cost

of Rs.2,000/-.

2. The parties are referred to as per their ranks

before the Tribunal for the sake of convenience.

3. Brief facts of the case are that, the appellant as

the claimant filed the claim petition under Section 166 of

Motor Vehicles Act, before the Tribunal in

MVC.No.96/2007 against respondent Nos.1 & 2 being the

insured and insurer of the motorcycle bearing registration

No.KA.26/J-5964, contending that the said motorcycle hit

her on 27.10.2006 at 7.00 p.m while she was standing at

Hombal Plot Bus stop. As a result, she sustained injuries.

Pillion rider of the motorcycle also fell down and sustained

injuries. The claimant sustained fracture of neck

femur(left) and contusion over left knee apart from

MFA No.21817 of 2011

internal injuries. She was immediately shifted to Shreyas

Orthopedics and Trauma Centre at Hubli and taken

treatment as an inpatient for 15 days. She spent

Rs.25,000/- towards medical expenses. She suffered

permanent disability due to injuries suffered by her.

Therefore, she prayed for awarding compensation by

allowing the claim petiton.

4. Respondent No.1-insured filed statement of

objections denying the contentions taken by the claimant.

It is contended that no such accident had occurred

involving his motorcycle, the claimant has made false

allegations only with an intention to claim compensation.

It is also stated that the accident if at all was due to the

negligent of the claimant herself. However, it is stated

that, if the Tribunal comes to the conclusion that the

petitioner is entitled for compensation, since the motor

cycle is insured with respondent No.2, it is the insurer who

is liable to pay compensation.

MFA No.21817 of 2011

5. Respondent No.2-Insurer filed statement of

objections denying the contention of the claimant. It is

specifically denied that there was a road traffic accident as

contended by the claimant involving the motorcycle in

question. It is also stated that the insured had never

informed about any such accident However, it is admitted

that the motorcycle in question was insured with it. Since

the claimant is not entitled for any compensation, prayed

for dismissal of the petition.

6. On the basis of these pleadings, the Tribunal

framed the following issues :

ISSUES

1. Whether the petitioner proves that she has sustained bodily injuries in the Motor vehicles Accident that occurred on 27.10.2006 at about 18.45 hours at Hombal Plot bus stop Hombal, Gadag, within the limits of Gadag Rural Police Station, due to rash and negligent driving of the motorcycle bearing its Reg.No.KA.26.J5964 by its driver and thereby caused the accident?

2. Whether the petitioner is entitled to any compensation? If so to what amount and from whom?

3. What award?

MFA No.21817 of 2011

7. The claimant herself examined as PW.1 and got

examined PW.2 and marked Exs.P.1 to P.32 in support of

her contention. The respondents have not led any oral

evidence. However, Ex.R.1 was marked through PW.1 and

Ex.R.2 to 5 are also marked with consent.

8. The Tribunal after taking into consideration all

these materials on record answered Issue No.1 in the

negative, Issue No.2 held to be does not survive for

consideration and accordingly the claim petition came to

be dismissed.

9. Being aggrieved by the same, the claimant is

before this Court.

10. Heard Sri H.M.Dharigod, learned counsel for the

appellant-claimant and Sri S.K.Kayakmath, learned

counsel for respondent No.2-Insurer.

11. Learned counsel for the appellant contended

that the road traffic accident involving the motorcycle in

question occurred on 26.10.2006. On the very next date

MFA No.21817 of 2011

i.e., 27.10.2006, the pillion rider of the motorcycle who

also got injured filed the first information as per Ex.P.2.

Immediately after the accident, the injured was taken to

the Hospital and she got treated. The medical records are

produced as per Exs.P.5 to P.32. All these materials were

rejected by the Tribunal without any basis. There is no

specific denial of the accident either by the insured or by

the insurer. On the other hand insured admitted factum of

accident. The finding recorded by the Tribunal that the

documents are tampered cannot be accepted. There is

absolutely no tampering of any of the documents. Ex.R.1

is the evidence of the claimant before the Criminal Court

which cannot be considered by the Tribunal. Hence, he

prays for allowing the appeal by setting aside the

impugned judgment and award passed by the Tribunal

and to award reasonable compensation in favour of the

claimant.

12. Per contra, learned counsel for respondent No.2

opposing the appeal submitted that, the pillion rider of the

MFA No.21817 of 2011

motorcycle in question lodged the first information on the

next date of the alleged accident. He was not examined

before the Tribunal. Ex.P.7, 10 and 15 to 19 were

tampered by the claimant. In fact those documents are

much earlier to the date of accident. In Ex.P.32 there is no

mention regarding any road traffic accident.

13. He further submitted that Ex.R.1 is the

deposition of the claimant in the criminal case wherein she

has categorically stated that she was hit by a tempo when

she was standing near the Bus stop. During cross-

examination also she categorically stated that she was not

hit by a motorcycle. Under such circumstances, the

Tribunal was right in rejecting the claim of the claimant.

There are no merits in the contentions raised by the

claimant. Therefore, he prays for dismissal of the appeal

with costs.

14. Perused the materials on record. The point that

would arise for my consideration is as under:

MFA No.21817 of 2011

"Whether the impugned judgment and award passed by the Tribunal calls for any interference by this Court."

15. My answer to the above point is in the negative

for the following:

REASONS

16. It is the specific contention of the claimant

before the Tribunal that she was hit by the motorcycle

bearing registration No.KA.26/J-5964, while she was

standing in-front of the Bus-stop. The pillion rider of the

motorcycle lodged the first information as per Ex.P.2. He

stated that he was also sustained injuries. But he was not

examined by the claimant before the Trial Court, even

though both insured as well as insurer have denied the

factum of accident.

17. It is pertinent to note that, immediately after

the alleged accident the claimant said to have been shifted

to Shreyas Orthopedics & Trauma Centre, Hubli. Ex.P.32 is

the inpatient record maintained in the said hospital

relating to the claimant. As per this document she has

MFA No.21817 of 2011

suffered fracture of neck femur (left). It is pertinent to

note that in the entire inpatient record there is no

reference to any road traffic accident or for having

registered the case as MLC.

18. Ex.P.7 is the bill for having purchased the

medicine. The date on bill is as 27/19/06. Apparently the

date mentioned as 27/9/2006 appears to have been

tampered. Similar is the case with Ex.P.10 where the date

is tampered as 29.10.2006. Ex.P.15 to 19 are also found

tampered. There is no reason or explanation for tampering

of these documents by the learned counsel for the

appellant. The contention of the learned counsel that,

there was no such tampering and even if there is some

overwriting, the same is to be ignored cannot be accepted.

When the claimant is claiming compensation for the

injuries sustained in the road traffic accident, the claimant

is required to prove her contention to the satisfaction of

the Tribunal. Even though these documents on the face of

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MFA No.21817 of 2011

it found tampered, there is absolutely no reasonable

explanation for the same.

19. PW.1 was cross-examined by the learned

counsel for the insurer and during her cross-examination

Ex.R.1 was tendered to her and got marked on her

admission. Ex.R.1 is the deposition of the claimant in

C.C.No.143/2007 i.e., the criminal case that was

registered against the rider of the motorcycle. This witness

categorically stated that a tempo came from behind and

dashed to her legs. In the meantime, a motorcycle had

came and dashed to the tempo. It is pertinent to note that

learned counsel for the accused in the said case during

cross-examination suggested to the witness that

motorcycle had never caused injuries to her. The

suggestion is categorically admitted by the witness.

20. From all these materials on record, it could be

reasonably concluded that there was no road traffic

accident as contended by the claimant involving the

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MFA No.21817 of 2011

motorcycle bearing registration No.KA.26/J-5964 owned

by respondent No.1 and insured with respondent No.2.

21. The Tribunal on appreciation of the materials on

record came to the proper conclusion and answered issue

No.1 in the negative. Accordingly, I do not find any reason

to interfere with the same. Accordingly, I answer issue

No.1 in the negative and proceed to pass the following:

ORDER

The appeal is dismissed with costs.

The impugned judgment and award dated 16.04.2010 passed in MVC.No.96/2007 on the file of the Member, A.M.A.C.T., Saundatti, is hereby confirmed.

Registry is directed to send back the Trial Court

records along with copy of the judgment of this Court.

SD/-

JUDGE

EM