Karnataka High Court
Anil vs Mallappa on 8 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:2848
MFA No. 24139 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO. 24139 OF 2013 (MV-I)
BETWEEN:
SRI. ANIL S/O. SHANKAR TORGALLI,
AGED ABOUT 22 YEARS,
R/AT CHIKKALGUDD,
TQ: HUKKERI, DIST: BELGAUM.
...APPELLANT
(BY SRI. S. S. YALIGAR, ADVOCATE)
AND:
1. SRI. MALLAPPA S/O. ANNAPPA MUDAPAKI,
AGED ABOUT 44 YEARS,
R/AT: CHIKKALGUDD,
TQ: HUKKERI, DIST: BELGAUM.
2. THE UNITED INSURANCE CO. LTD,
"SITA SMRUTI", 2ND FLOOR,
Digitally P. B. NO.156, MARUTI GALLI,
signed by
SAMREEN BELGAUM-590002.
SAMREEN AYUB
AYUB DESHNUR
DESHNUR Date:
...RESPONDENTS
2024.02.15
13:25:42
(BY MISS. VINAYA KUPPELUR, REP.
+0530 SRI. N. R. KUPPELUR, ADV. FOR RESPONDENT NO.2,
NOTICE TO RESPONDENT NO.1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1)
OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 28-08-2012 PASSED IN MVC NO.2425/2009 ON THE FILE OF
PRESIDING OFFICER, FAST TRACK COURT AND ADHOC DISTRICT
JUDGE, HUKKERI, DISMISSING THE PETITION FILED U/SEC.166 OF
MV ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:2848
MFA No. 24139 of 2013
JUDGMENT
Heard Sri.S.S.Yaligar, learned counsel for the
appellant.
2. Unsuccessful claimant is the appellant challenging
the validity of the judgment and award passed in MVC
No.2425/2009 dated 28.07.2012 on the file of Fast Track
and Adhoc District Judge, Hukkeri.
3. Claimant laid a claim under Section 166 of
Motor Vehicles Act contending that on 11.02.2009 at about
7.30 p.m. when he was proceeding by walk from his land
towards his house, he met with a road traffic accident
involving motorcycle bearing No.KA-23-R-4592 and
therefore, sought for awarding suitable compensation.
There is a delay of 15 days in lodging the complaint, in
respect of the accident.
4. Claim petition was resisted by filing detailed
written statement by the Insurance Company denying the
averments of claim petition in toto. Tribunal after raising
necessary issues recorded the evidence of the claimant
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and Dr. Sri.S.R.Kore, relied on 15 documentary evidence
placed on record on behalf of the claimant.
5. On behalf of respondent, Insurance Policy and
notice copy are marked as Ex.R1 and R2.
6. On concluding the recording of evidence,
Tribunal heard the parties in detail and dismissed the
claim petition by holding that claimant, failed to prove the
incident as is propounded by the claimant in paragraph
Nos.15,16,17 and 18 as under:
15. P.W 2 S.R. Kore has given evidence about the
disability suffered by the petitioner. He has
admitted in the cross-examination that Doctor B.S.
Patil has not mentioned in his wound certificate
about the sustaining of injuries by the petitioner in
the accident. He has also shown ignorance about
taking of follow up treatment by the petitioner. He
has also admitted that said injuries might have
caused even from other than the accident. If the
entire cross-examination of P.W 2 has been taken
into consideration, it clearly shows that there is
possibility of sustaining injuries by the petitioner
on account of other factors also. If the evidence
given by P.W 2 in the cross-examination about
non- mentioning of history of sustaining injuries by
the petitioner coupled with possibility of sustaining
injuries other than the accident defeats the
petitioner to show that he has sustained accidental
injuries and taken treatment with Dr. B.S. Patil.
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16. Ex.P6 is the I.M.V report. The accident has taken
place on 11.2.2009 at 7.30p.m. The complaint has
been filed on 26.2.2009 at 20.30 hours. Motor
cycle bearing No. KA:23/R-4592 examined by the
vehicle inspector at Yamakanamardi police station
on 12.2.2009 at 4.00 pm. It discloses that there is
no damages and there were no visible and fresh
damages found on the said vehicle. The evidence
of P.W 2 and the documentary evidence Ex. P1 do
not disclose about the falling of the driver of the
motorcycle or going away without stopping the
vehicle. As against this, evidence of P.W 1 given in
the cross- examination shows that after dashing to
him the driver of the motorcycle has stopped at
some distance. If actually there was accident, the
vehicle ought to have fell down and ought to have
sustained damages. Non-finding of any damages
to the vehicle also defeats to the petitioner to
show that he has sustained accidental injuries and
there was accident on the day in question.
17. It is important to note that whenever the doctor
treats the patient, he has to ascertain whether the
injuries are on account of other facts or they are
on account of medico legal cases. If the cases are
pertaining to MLC, they have to intimate to the
nearest police.. station about giving of treatment
to the said patient and about the history of
sustaining injuries. In the case on hand, the
petitioner has not produced any documents to
show about the intimation made by Dr. B.S. Patil
or Dr. Mokashi of Chikalgud about sustaining
injuries by the petitioners in road traffic accident.
It shows that because the said injuries are not
coming under purview of MLC cases, they would
not have intimated the same. In the absence of
such material, it cannot be said that the injuries
sustained by the petitioner is on account of the
accident as stated by him. As against this, the
very facts supports to the defence set out by the
respondent No.2 that the patient has not sustained
accidental injuries and the same has been
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connected to the alleged accident. The Advocate
for petitioner has argued that the documents
produced by him clearly show about sustaining by
the petitioner in the accident. of injuries I have
considered the very documents relied on by the
petitioner. In the process of the said documents,
the first document will be the medical report which
itself does not disclose about sustaining of injuries
by the petitioner in the accident. There is also
abnormal delay in filling the complaint which has
not been explained before this Court. If all these
facts and circumstances have been taken into
consideration, the arguments addressed by the
advocate for the petitioner is not acceptable one.
18. In view of discussion made above, it is very clear
that the petitioner has failed to establish that on
11.2.2009 at about 7.30 p.m there was accident
with motorcycle bearing No. KA:23/R-4592 and he
has sustained accidental injuries in the said
accident. Such being the case, it is very clear that
the petitioner has failed to establish Issue No.1.
Hence, I answer the Issue No.1 in the negative."
7. Being aggrieved by the same, claimant is in
appeal.
8. Reiterating the grounds urged in the appeal
memorandum, Sri.S.S.Yaligar, learned counsel for the
appellant contended that mere delay in lodging the
complaint is blown out of the proportion by the Tribunal
while disbelieving the case of the claimant and sought for
allowing the appeal.
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9. Per contra, Miss.Vinaya Kuppellur, learned
counsel representing Sri.N.R.Kuppellur, learned counsel for
respondent No.2 supported the impugned judgment by
contending that not only the delay is the reason for
dismissal, but the incident as is propounded by the
claimant has not been established by placing cogent and
convincing evidence on record which has been rightly
appreciated by the Tribunal and sought for dismissal of the
appeal.
10. In view of the rival contentions of the parties,
this Court perused the material on record, meticulously.
11. On such perusal of the material on record,
admittedly, there is a delay of 15 days in filing the
complaint.
12. There is no material on record to show that
involvement of the motorcycle in the accident as on the
date of the accident, either in the medical records or by
the oral evidence of P.W.2.
13. Learned Trial Judge in paragraphs Nos.15 to 18
as referred to supra, has clearly recorded a finding that
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claimant is not able to satisfactorily place the proof that he
suffered injuries on account of road traffic accident that
occurred on 11.02.2009 at about 7.30 p.m. by rash and
negligent driving by the driver of the motorcycle bearing
No.KA-23-R-4592.
14. In view of the above material on record, this
Court does not find any legal infirmity or perversity to
arrive at different conclusion than that of the Tribunal.
Accordingly, following:
ORDER
(i) Admission declined.
(ii) Appeal is dismissed.
(iii) No order as to costs.
Sd/-
JUDGE
KAV
