Karnataka High Court
Vijendra @ Vijayakumar T H S/O ... vs Shabbir S/O Ahammad Killedar on 15 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3715
MFA No. 25321 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.25321 OF 2012 (MV-I)
BETWEEN:
VIJENDRANAIK @ VIJAYKUMAR T.H.
S/O. CHANNAPPANAIK
AGE: 32 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: TALLUR, TQ: SORAB,
NOW AT KOPPARASIKOPPA,
TQ: HANGAL, DIST: HAVERI.
...APPELLANT
(BY SRI. H.R. LATUR, ADVOCATE)
AND:
1. SHABBIR S/O. AHAMMAD KILLEDAR,
AGE: 49 YEARS, OCC: BUSINESS,
R/O: GOUND ROAD, ANAVATTI,
TQ: SORAB, DIST: SHIMOGA.
Digitally
signed by
SAMREEN
SAMREEN AYUB 2. THE DIVISIONAL MANAGER,
AYUB DESHNUR
DESHNUR Date: ORIENTAL INSURANCE CO. LTD.
2024.02.23
17:03:38 ENKAY COMPLEX, KESHWAPUR,
+0530
HUBLI.
...RESPONDENTS
(BY SRI. RAVINDRA R.MANE, ADVOCATE FOR R2;
R1 SERVED)
THIS M.F.A. IS FILED U/SEC.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DTD:20.12.2011 PASSED IN
M.V.C. NO.188/2008 BY THE SENIOR CIVIL JUDGE & AMACT,
HANGAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 25321 of 2012
THIS M.F.A., COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Shri. H. R. Latur, learned counsel for the appellant
and Shri. R. R. Mane, learned counsel for respondent No.2.
2. Unsuccessful claimant in MVC No.188/2008 on the
file of Senior Civil Judge and Additional Motor Accident claims
Tribunal, questioning the validity of judgment and award
passed therein dated 20.12.2011.
3. Facts in brief which are utmost necessary for
disposal of the present appeal are as under:
3.1. A claim petition came to be filed under Section 166
of the Motor Vehicles Act, 1988 (for short 'M.V.Act'),
contending that on 16.06.2007 at about 9.00 p.m., in front of
Renuka Rice Mill, near Tyagarti, Sagar Taluk, when the
claimant was proceeding on a TVS Start motorcycle bearing
registration No.KA-15/K-2507 towards Ballibail side with
another person as pillion rider, a driver of the Maruti Omni
bearing registration No.KA-17/M-2322 drove the same in a rash
and negligent manner and dashed against the motor cycle.
Whereby he fell down and sustained grievous injuries.
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3.2. He was shifted to Government Hospital, Sagar for
first aid treatment and thereafter shifted to Nanjappa Hospital,
Shimogga and subsequently to Sanjaya Gandhi Accident
Hospital, Bengaluru and he has incurred sum of Rs.2,25,000/-
towards the medical expenses and also suffered permanent
disability and he has become unsound mind person.
Therefore, sought for awarding suitable compensation.
4. Notice of the claim petition was served on the
respondents. Respondents appeared before the Court.
5. Both respondents denied the claim petition
averments in toto by filing detail written statement denying the
very genesis of the accident and involvement of the Maruti
Omni bearing registration No.KA-17/M-2322 in the incident.
6. Based on the rival contentions in the pleadings, the
Tribunal raised the following issues;
"ISSUES
1. Whether the petitioner prove that, on 16-
06-2007 at about 9.00 p.m. in front of Renuka
Rice Mill, near Tygarti, Sagar Talik, when he
was riding TVS Star motor cycle bearing Reg.
No.KA-15/K-2507 towards Ballibail side along
with another person as a pillion rider, at that
time, the drive of Maruti Omni bearing No.KA-
17/M-2322 drove the same in a rash and
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negligent manner and dashed against the said
motor cycle and in the said accident the
petitioner has sustained injuries as alleged?
2. Whether the respondent No.2 prove that
the petition is hit by non joinder of necessary
parties?
3. Whether the respondent No.2 prove that
the driver of the said Maruti Omni bearing
No.KA-17/M-2322 did not posses valid and
effective D.L. at the time of accident as alleged?
4. Whether the petitioners are entitled for
compensation? If so, what is the quantum and
from whom?
5. To what order or award?"
7. In order to prove the case of the claimant, the
claimant got examined himself as PW.1 and Dr. Umanath R.
Ullal as PW.2.
8. On behalf of respondents, officer of the Insurance
Company by name Fakkirappa mother Honnavva is examined
as RW.1 and authorization letter is marked at Ex.R.1.
9. On behalf of the claimant as many as 17 documents
were placed on record comprising of copy of the FIR, complaint,
panchanama, M.V. report, charge sheet, wound certificate and
other medical records as Ex.P.1 to P.17.
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10. On conclusion of recoding of evidence, learned Trial
Judge, heard the parties in detail and by impugned judgment
dismissed the claim petition holding that the claimant is unable
to prove that he sustained accidental injuries involving Maruti
Omni bearing registration No.KA-17/M-2322.
11. Being aggrieved by the same, the claimant is in
appeal on the following grounds:
• "That, the judgment and award passed by Court
below insofar as it relates to the contrary to law and facts
of the case.
• That the tribunal has not considered the charge
sheet and, evidence of the petitioner and admissions of
the driver of the offending vehicle. Therefore the
judgment and award is liable to be set aside.
• That the tribunal has not considered the injuries
sustained by the appellant.
• That the tribunal has not considered there is no
need of the strict proof in accidents claims.
• That the claimant has proved the accident and
charge sheet is final to prove the accident. Therefore the
judgment is liable to be set-aside.
• That the tribunal has not considered the injuries
sustained by appellant and medical expenses spend by
the appellant. That the appellant has spend more than
Rs.2,00,000/- towards medical expenses. Therefore the
judgment is liable to be set aside."
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12. Shri. H. R. Latur, learned counsel for the appellant
reiterating the grounds urged in the appeal memorandum
contended that the Tribunal has not properly appreciated the
material evidence on record and sought for allowing the appeal.
13. He also sought for remitting the matter to the Trial
Court for fresh disposal by permitting the claimant to examine
the pillion rider.
14. Per contra, Shri. R. R. Mane, learned counsel for
respondent No.2 - Insurance Company supported the
impugned judgment by contending that there is a shift or
deviation in the case of the claimant from the date of filing of
the complaint till the disposal of the claim petition which has
been rightly observed by the learned Trial Judge by assigning
proper and cogent reasons, the claim petition came to be
dismissed and therefore sought for dismissal of the appeal.
15. In view of the rival contentions of the parties, this
Court perused the material on record meticulously.
16. On such perusal of the material on record, following
points would arise for consideration:
i) Whether the appellant has made out a
case that he suffered accidental injuries on
16.06.2007 at about 9.00 p.m., by
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involvement of the Maruti Omni bearing
registration No.KA-17/M-2322 and thereby he
is entitled to claim compensation?
ii) If so, what is the quantum of
compensation?
iii) Whether the impugned judgment is
suffering from legal infirmity or perversity and
thus called for interference?
iv) What order?
Regarding points number 1 to 3:-
17. In the case on hand, in order to establish the case
of the claimant, the claimant has been examined as PW.1. He
has produced the medical records marked at Ex.P.7 and 8
which are the wound certificates, Ex.P.9-O.P. Registration,
Ex.P.10-Prescriptions, Ex.P.11-Medcial bills, Ex.P.12-
Biochemistry report, Ex.P.13 to P.15 - X-ray and Ex.P.16 is the
disability certificate issued by PW.2.
18. In the complaint marked at Ex.P.1, there is a clear
and categorical statement made by the author of the complaint
who is none other than the brother of the complainant that the
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accident took place on account of the rash and negligent driving
of lorry or some other motor vehicle.
19. Admittedly, the author of the complaint is not
examined before the Court. In the cross examination of PW.1
who is the claimant, he has admitted that he was all alone
proceeding on a motor cycle as on the date of accident, but in
the complaint it has been mentioned as cousin brother of the
complainant also travelling on a motor cycle as a pillion rider.
20. If that is so, said cousin brother would have also
sustained injuries in the very same accident and he is an
eyewitness to the incident and there was no impediment for the
cousin brother of the claimant to lodge the complaint.
Therefore, there arises the doubt as to the very contents of the
complaint itself. If the cousin brother of the claimant was
travelling on the motor cycle, and if the motor cycle met with
an accident because of rash and negligent driving of the
opposite vehicle, he is the best witness to depose before the
Court as to which is the offending vehicle, if not the number of
the vehicle.
21. The complaint averments are vague inasmuch as, it
says either a motor cycle or a lorry. At any rate, the complaint
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averments did not mention that offending vehicle was a Maruti
Omni Car. Neither the motor cycle nor the lorry would be
misconstrued as a Maruti Omni Car. Further, complaint is a
belated complaint and the author of the complaint who is the
brother. Nothing prevented him to enquire with the cousin
brother who was the pillion rider of the motor cycle to enquire
as to which is the offending vehicle and mention the same in
the complaint. The police after investigation, however took the
further statement and implicated Maruti Omni bearing
registration No.KA-17/M-2322.
22. It is pertinent to note that the owner of the said car
has denied the involvement of said car by filing the detail
written statement before the Court.
23. These factors when viewed cumulatively, there
arises a sufficient doubt as to the very involvement of Maruti
Omni bearing registration No.KA-17/M-2322 in the accident.
24. Further, for the reasons best known to the claimant,
neither the complainant nor the cousin brother who is the
alleged pillion rider or for that matter the punch witness who
has assisted the police in writing the spot mahazar namely
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Dakappa has been examined on behalf of claimant to prove his
case.
25. Spot panchanama is marked at Ex.P.2, said
Dakappa is an eyewitness to the incident. If it is so, what
prevented Dakappa to say as to which is the vehicle that has
actually involved in the accident and why the claimant did not
examine Dakappa as a witness is a question that remains
unanswered.
26. Further, the body pieces of the vehicle involved in
the accident has been seized under the spot mahazar and the
same does not tally with the seized car.
27. All these factors have been taken note by the
Tribunal in a clear and categorical manner while recording a
finding that the involvement of Maruti Omni bearing
registration No.KA-17/M-2322 itself is not established by
placing cogent and convincing evidence on record.
28. It is settled principles of law that merely filing of the
charge sheet against the owner of the Maruti Omni bearing
registration No.KA-17/M-2322 would not itself be sufficient to
establish that the Maruti Omni bearing registration No.KA-
17/M-2322 was involved in the accident.
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29. Further, in the claim petition itself, it has been
mentioned that the claimant has turned out as a fully unsound
mind person on account of the accidental injuries sustained by
him.
30. If it is so, how can he lay a claim and why he did
not take the assistance of any guardian nor prayed the Court to
appoint a natural guardian for himself is a question that
remains unanswered.
31. These factors when viewed cumulatively, it is
crystal clear that the claimant wants to somehow implicate the
Maruti Omni bearing registration No.KA-17/M-2322 only with
an intention to claim the compensation from the Insurance
Company of Maruti Omni bearing registration No.KA-17/M-
2322.
32. Accordingly, even after re-appreciating the material
evidence and the arguments put forth on behalf of the parties,
this Court does not find any legal infirmity or perversity in
recording a finding by the Tribunal that the claimant has failed
to prove that he has sustained accidental injures by
involvement of Maruti Omni bearing registration No.KA-17/M-
2322.
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33. Accordingly, point Nos.1 and 3 are answered in the
negative.
34. Consequently, point No.2 would not survive for
consideration.
Regarding point No.4:-
35. In view of the finding of this Court on point Nos.1 to
3 as above, the following order is passed;
ORDER
(i) Appeal is merit less and hereby
dismissed.
(ii) No order as to costs.
Sd/-
JUDGE
SMM
