Karnataka High Court
C Alphonse vs Saravanthi K on 13 February, 2024
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NC: 2024:KHC:6145
MFA No. 2799 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2799 OF 2012 (MV)
BETWEEN:
1. C ALPHONSE,
S/O CHOWRAPPA,
AGED ABOUT 39 YEARS,
NO. 38, HOMMADEVANAHALLI,
GOTTIGERE POST,
BANGALORE-77.
...APPELLANT
(BY SRI. RASHMI. M.R.,ADVOCATE)
AND:
1. SARAVANTHI K,
NO. 735, 10TH MAIN ROAD,
4TH BLOCK, JAYANAGAR,
BANGALORE- 11.
2. THE NEW INDIA ASSURANCE CO. LTD VI,
RESIDENCY ROAD CROSS,
Digitally
signed by NO. 45/7, GROUND FLOOR,
BHARATHI S VINAYAKA COMPLEX,
Location:
HIGH COURT BANGALORE-01.
OF
KARNATAKA ...RESPONDENTS
(BY SRI. A M VENKATESH.,ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED.)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED 9.2.2012 PASSED IN MVC NO.1477/2011 ON
THE FILE OF MACT-V, COURT OF SMALL CAUSES, BANGALORE,
DISMISSING THE CLAIM PETITION FOR COMPENSATION AND ETC,.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:6145
MFA No. 2799 of 2012
JUDGMENT
The above appeal is filed by the claimant challenging the
judgment and award dated 09.02.2012 passed in
MVC.No.1477/2011 by the Motor Accident Claims Tribunal-V
Court of Small Causes, Bengaluru1, wherein the claim petition
filed by the claimant has been dismissed.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. It is the case of the claimant that on 19.10.2010
when he was riding motor cycle bearing No. KA-01-R-182,
another honda active scooter bearing No. KA-05-HL-8199 came
in high speed rash and negligent manner and hit the motor
cycle causing the accident in question, wherein the claimant
sustained grievous injuries. Claiming compensation for the
same, the claimant filed a claim petition arraying the owner and
insurer of the honda active scooter as Respondent Nos. 1 and 2
respectively. The Respondent No.1 - owner was absent and he
was placed as ex-parte. Respondent No.2 - insurer entered
Hereinafter referred to as the 'Tribunal'
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appearance and contested the said proceeding by filing
statement of objections.
4. The claimant examined himself as PW.1 and the
doctor as PW.2. Ex.P.1 to Ex.P.14 were marked in evidence. No
oral or documentary evidence has been produced on behalf of
the Respondents. The Tribunal by its judgment and award
dated 09.02.2012 has dismissed the claim petition. Being
aggrieved the present appeal is filed.
5. Along with the above appeal IA.No.1/2012 is filed
under Order 41 Rule 27 read with Section 151 of the CPC to
permit the Appellant to produce additional documents. In the
affidavit filed in support of the said application, the claimant
has deposed that he could not secure the medico legal case
report and wound certificate from the Jayanagar Orthopedic
Center during pendency of the proceedings before the Tribunal
and he was under the impression that the Jayanagar traffic
police might have secure the said documents. That after the
judgment of the Tribunal, he secured the said documents and
produced it along with said application.
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6. It is relevant to note that the attested copy of the
medico legal case report dated 19.10.2010 issued by Jayanagar
Orthopedic Center has been produced, which was issued to the
Police Inspector of Tilak nagar police station. The attested copy
of wound certificate dated 02.11.2010 issued by the Jayanagar
Orthopedic Center has also been produced. Since the
documents produced along with the application pertaining to
the accident in question and since these could not be produced
before the Tribunal and the same is required to be considered
while considering the present appeal. Hence, IA.No.1/2012 is
allowed. The documents are taken on record.
7. Under normal circumstances since the application is
taken on record the matter is required to be remanded to the
Tribunal for recording evidence. However, in the present case
learned counsel for the Appellant having been deceased, notice
issued by this Court to the Appellant has been returned with
the endorsement as insufficient address. The notice issued to
the Appellant through his employer has also been returned as
insufficient address. Hence, pursuant to the order dated
09.10.2023 Smt. Rashmi M.R. has appointed as a legal aid
counsel on behalf of the Appellant.
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8. It is also relevant to note that the accident was of
the year 2010 and the Tribunal has disposed of the claim
proceedings in the year 2012 and the above appeal is pending
before this Court for nearly twelve years. In view of the
aforementioned circumstance the documents are taken on
record and are considered while considering the present appeal
on its merits.
9. The Tribunal, while considering the oral and
documentary evidence on record, has noticed that the
complaint was lodged on 30.10.2010 i.e., after laps of more
than eleven days of occurrence of the accident. Further, the
medical records produced before the Tribunal do not disclose
the treatment taken by the claimant at Jayanagar Orthopedic
Center.
10. The Tribunal has also noticed that the doctor who
was examined as PW.2 is not the treated doctor and he has
deposed only on the basis of the information that documents
furnished by the claimant. The Tribunal has also noticed that
motor vehicle accident report (Ex.P.4) discloses that there are
no fresh visible damages on the vehicle. Hence, the Tribunal
has dismissed the claim petition.
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11. Upon an re-appreciation of oral and documentary
evidence on record including the records of the Tribunal as well
as the documents produced along with IA.No.1/2012, the same
discloses that the claimant had taken treatment at the
Jayanagar Orthopedic Center. The said documents issued by
the Jayanagar Orthopedic Center discloses the history that the
claimant was hit by a two wheeler vehicle bearing No. KA-05-
HG-8199 on 19.10.2010. Even if the same is taken into
consideration with regarding two aspects noticed by the
Tribunal there is still no explanation forthcoming from the
claimant i.e., with regard to the delay in lodging of the
complaint and with regard to the fact that in the motor vehicle
accident report no damages are forthcoming from the both
report.
12. Even if it is taken into consideration that due to the
claimant being treated for his injuries he could not have lodged
the police complaint immediately, still the aspect with regard to
both the vehicles not having suffered any visible damages as
noticed in motor vehicle accident report (Ex.P.4) is required to
be explained by the claimant.
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13. It is relevant to note that neither in the claim
petition nor in the affidavit by way of examination in chief the
claimant has explained with regard to delay in lodging the
complaint. It is further relevant to note that the claimant has
not examined any witness to the accident. That in the cross-
examination of PW.1, he has admitted that he has not stated
before the doctor as to which vehicle caused the accident.
Hence, the noting in the records of the Jayanagar Orthopedic
Center with regard to the vehicle number was an another
aspect in which the claimant was required to explain which has
not been done.
14. Having regard to the aforementioned aspects, the
claimant not having explained the various
discrepancies/inconsistencies that are forthcoming from the
records pertaining to the accident in question, no ground is
made out by the Appellant to interfere with the judgment and
award passed by the Tribunal.
15. In view of the aforementioned, the following order
is passed:
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ORDER
i) The above appeal is dismissed;
ii) The judgment and award dated 09.02.2012 passed in
MVC.No.1477/2011 by the Motor Accident Claims
Tribunal-V Court of Small Causes, Bengaluru, is
affirmed;
iii) No costs.
Sd/-
JUDGE
PNV
