Karnataka High Court
Dheerendra S/O Shrinivas Naik vs Irfan A Bepari on 14 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3653
MFA No. 24275 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.24275 OF 2013 (MV)
BETWEEN:
SHRI. DHEERENDRA
S/O. SHRINIVAS NAIK
AGE: 68 YEARS, OCC: PRIVATE WORK,
R/O : F-3, FIRST FLOOR,
SAHYADRI APARTMENT,
SHIVAJI COLONY, TILAKWADI,
BELAGAVI.
...APPELLANT
(BY SRI. SANTOSH B.RAWOOT, ADVOCATE)
AND:
1. SHRI. IRFAN A.BEPARI,
C/O : ABDUL AJEEZ, 200585,
KARBAR GALLI, ANGOL,
BELAGAVI.
2. THE DIVISIONAL MANAGER,
SAMREEN NATIONAL INSURANCE CO, LTD,
AYUB DIVISIONAL OFFICE, 1ST FLOOR,
DESHNUR
Digitally signed by
PRABHU BUILDING, 1732,
SAMREEN AYUB
DESHNUR
Date: 2024.02.22
RAMDEV GALLI, BELAGAVI.
16:46:26 +0530
...RESPONDENTS
(BY SRI. SURESH S.GUNDI, ADVOCATE FOR R2,
R1 SERVED)
THIS M.F.A. IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:12-09-2012 PASSED IN MVC
NO.572/2007 ON THE FILE OF II-ADDL. SENIOR CIVIL JUDGE AND
MEMBER, ADDL. MACT, BELAGAVI, DISMISSING THE PETITION FILED
U/SEC.166 OF MV ACT.
THIS M.F.A., COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:3653
MFA No. 24275 of 2013
JUDGMENT
Heard Sri.Santosh B. Rawoot, learned counsel for the
appellant and Sri.suresh S. Gundi, learned counsel for
respondent No.2.
2. Unsuccessful claimant is in appeal challenging the
validity of the judgment and award passed in MVC No.572/2007
dated 12.09.2012 on the file of II Additional Senior Civil Judge
and Additional Motor Vehicle Claims Tribunal, Belgaum.
3. Claimant filed a claim petition under Section 166 of
Motor Vehicles Act which was resisted in MVC No.572/2007 as
under:
Claimant while proceeding with his wife on the left side of
the road on 20.09.2006 near Budhawar Peth cross, at about
08.00 p.m., met with a road traffic accident, involving a
motorcycle bearing No.KA-22/5896. He was shifted to
Dr.Sarode Hospital, Khanapur Road, Belgaum and later on to
higher medical care. He was cured with all injuries and
therefore, he laid a claim.
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4. Claim petition was seriously contested by filing
detailed written statement including the involvement of the
Auto Rickshaw bearing No.KA-22/5896.
5. Tribunal raised necessary issues and recorded the
evidence of claimants as well as Dr.Sangayya H. Motimath, who
issued disability certificate vide Ex.P.10.
6. On behalf of respondent, Dr. Prakash Ekanath
Sarode, who was the Doctor said to have treated the claimant
at the first instance and Sri.Raghuveer Shankar Baliga, who is
the officer of Insurance Company is examined as R.W.1 and
R.W.2 and marked the case sheet vide Ex.R.1.
7. On behalf of claimants, eleven documentary
evidence were placed on record and marked at Ex.P.1 to
Ex.P.11 comprising of Fir, complaint, spot panchanama, wound
certificate, MVI report, charge sheet, certified copy of the order
sheet in CC No.1530/2006, intimation to police station,
discharge summary, disability certificate and X-ray film.
8. Learned Trial Judge on conclusion of recording of
the evidence, heard the parties in detail and recorded the
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reasons vide paragraph Nos.14 and 15 and dismissed the claim
petition.
9. Being aggrieved by the same, the claimant is in
appeal.
10. Sri.Santosh B. Rawoot, learned counsel contended
that mere delay in lodging the complaint itself is blown out of
the proportion by learned Trial Judge while appreciating the
material evidence on record and wrongly dismissed the case of
the claimant resulting in miscarriage of justice and sought for
allowing the appeal.
11. Per contra, Sri.Suresh S. Gundi, learned counsel for
respondent No.2/ Insurance Company invited the attention of
this Court to paragraph Nos.14 and 15 of the impugned
judgment and contended that Tribunal has rightly appreciated
the material evidence on record and dismissed the claim
petition. Therefore, sought for dismissal of the appeal.
12. In view of the rival contentions of the parties, this
Court perused the material on record meticulously.
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13. On such perusal of the material on record, the
injured sustaining the injuries in a road traffic accident stands
established. Now the question is whether the Auto rickshaw
bearing No.KA-22/5896 is the offending vehicle or not is to be
decided.
14. In paragraph Nos.14 and 15 of the impugned
judgment, learned Trial Judge has held as under:
14) The accident has taken place on 20-9-2006 on a
busy road where at a nearby place Tilakwadi Police
Station is located. The complaint Ex.P.2 has reached
the jurisdictional Traffic South P.S. only on 11-10-
2006. There is absolutely an inordinate delay which has
not been satisfactorily explained by the petitioner.
Moreover as RW.1 has stated in his evidence the
petitioner and his relatives had directly informed the
police before coming to the hospital. On careful
scrutiny of all the oral and documentary evidence
placed on record it appears that some other vehicle
dashed to the petitioner and probably the said vehicle
did not have a insurance policy and as such at a
belated stage the petitioner in connivance with
respondent No.1 has cooked up a false story about the
auto rickshaw being involved in the accident. It is also
to be noted that the petitioner has not produced any
medical prescriptions or bills and contends that he has
spent Rs.70,000/- for his medical treatment. In the
cross examination PW.1 has stated that he has lost all
his medical bills and as such he could not produce the
same. It is difficult to believe the said version of the
petitioner. Anyhow I am not going into the other merits
of the case since at the threshold itself the petitioner is
not able to prove that the accident involving
respondent No.1 and auto rickshaw bearing No.KA-
22/5896 accident was caused and that he has been
injured in the said accident.
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15) The learned counsel for the petitioner has
strenuously contended that the police have investigated
about the accident after lodging of Ex.P.2 complaint
and the I.O. has submitted charge sheet as per Ex.P.6
indicting for committing traffic offence against
respondent No.1 herein and that respondent No.1 has
appeared before the Court and has pleaded guilty to
the charge which can be seen in Ex.P.7 order sheet. As
such it is contended that respondent No.2 cannot raise
any dispute about the occurrence of such accident. This
argument is repelled by the learned counsel for the
respondent No.2. I have applied my mind to the said
contention of the petitioner. Respondent No.1 has no
doubt pleaded guilty to the charge but as discussed by
me supra, the case of the petitioner is full of doubt and
suspicion. Hence merely because the I.O. has
submitted a charge sheet, it cannot be ipso facto
believed by this Tribunal. For all the aforesaid reasons I
reject the claim of the petitioner."
15. It is pertinent to note that no medical records are
placed on record by the claimant for having taken the
treatment in Dr.Sarode Hospital at the first instance. Insurance
Company has taken the responsibility of producing the case
sheet from Dr.Sarode Hospital apart from examining
Dr.Prakash Ekanath Sarode, as R.W.1.
16. There is a delay of more than 15 days in lodging the
complaint as could be seen from the material available on
record. Admittedly, the incident has occurred on 20.09.2006,
where as the written complaint has been sent by registered
post to the police on 07.10.2006 which was acted upon by the
police and registered a case on 11.10.2006.
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17. It is pertinent to note that in the registered
complaint itself, the Auto rickshaw number has been mentioned
by the claimant, who gave the registered number of the Auto
rickshaw which was involved in the incident is a question that
remains answered.
18. Further, according to the claimant, his wife
accompanied him and she has taken the claimant to Dr.Sarode
Hospital. Complaint averments also reveal that the Auto
Rickshaw came from the hand side and dashed against the
claimant. Incident has occurred at 8.00 p.m. If that is so, who
noted the registered number of Auto Rickshaw; whether at all
wife of the claimant has noted the number of Auto Rickshaw or
not are all the question that remains answered on behalf of the
claimant.
19. Further, non examination of wife of the claimant
also throws sufficient doubt about the involvement of Auto
Rickshaw. Further, nothing prevented the claimant or his wife
to furnish the number of Auto Rickshaw or atleast to mention in
the history to Dr.Sarode that claimant sustained injuries in a
road traffic accident involving an Auto Rickshaw. In the
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absence of any such material which is forthcoming, Tribunal
has rightly appreciated that involvement of the Auto Rickshaw
has not been properly proved by the claimant so as to claim the
compensation from the owner of Auto Rickshaw or from the
Insurance Company thereof.
20. Under such circumstances, even after
reappreciation of the material on record, this Court does not
find any legal infirmity or perversity in recording a finding that
the Auto Rickshaw bearing No.KA-22/5896 was not involved in
the incident.
21. Accordingly, following:
ORDER
i. Appeal grounds are meritless and hereby
dismissed.
ii. No order as to costs.
Sd/-
JUDGE
KAV
