Karnataka High Court

Dhanaji vs Datta And Anr on 27 February, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                       MFA No. 201685 of 2022




                                 IN THE HIGH COURT OF KARNATAKA,
                                        KALABURAGI BENCH
                             DATED THIS THE 27TH DAY OF FEBRUARY, 2024

                                             PRESENT

                           THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                AND
                                THE HON'BLE MR. JUSTICE K V ARAVIND

                           MISCL. FIRST APPEAL NO. 201685 OF 2022 (MV-I)

                      BETWEEN:
                          DHANAJI S/O PUNDALIK DANGE,
                          AGE: 40 YEARS, OCC: DRIVER,
                          R/O MARWADE VILLAGE,
                          TQ: MANGALWEDA, DIST: SOLAPUR,
                          NOW AT R/O GANESH NAGAR, VIJAYAPURA-586101.
                                                                ...APPELLANT
                      (BY SRI. KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
                      AND:
                      1.  DATTA S/O PANDURANG GAIKWAD,
                          AGE: 56 YEARS, OCC: BUSINESS,
                          R/O MARWADE VILLAGE, TQ: MANGALWEDA,
                          DIST: SOLAPUR-413305.
Digitally signed by
VARSHA N
                      2. THE DIVISIONAL MANAGER,
RASALKAR
Location: HIGH            TE UNITED INDIA INSURANCE COMPANY LTD.,
COURT OF
KARNATAKA                 S.S. FRONT ROAD, VIJAYAPURA-586101.
                                                              ...RESPONDENTS
                      (BY SRI. SUDARSHAN M, ADVOCATE FOR R2;
                           NOTICE TO R1 IS HELD SUFFICIENT)
                           THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
                      PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED:
                      06.07.2020 PASSED IN MVC NO.1197/2015 ON THE FILE OF
                      THE COURT OF THE II ADDL. SENIOR CIVIL JUDGE AND
                      MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VII,
                      VIJAYAPURA AT VIJAYAPURA. AND ALLOW THIS APPEAL AND
                      TO GRANT THE COMPENSATION AMOUNT OF RS.19,75,000/-
                      ONLY AS CLAIMED BY THE APPEALLANT BEFORE THE
                      TRIBUNAL.
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                               NC: 2024:KHC-K:1767-DB
                                    MFA No. 201685 of 2022




     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
K.V.Aravind J., DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal by the claimant against the rejection of

the claim petition in MVC No.1197/2015 dated 06.07.2020

on the file of Addl. Senior Civil Judge and Member of Motor

Accident Claims Tribunal No.VII Vijayapura, at Vijayapura.

2. The claim petition was filed under Section 166 of

the Motor Vehicles Act 1988, claiming compensation for

the injuries sustained due to the accident that occurred on

01.04.2015 involving the motorcycle bearing No.MH-13/M-

5727 and the tractor bearing No.MH-13/AJ-4963. It is

stated in the claim petition that the claimant while riding

the motorcycle along with his friend on 01.04.2015 at

about 9:30 a.m. from Marwade to Yadrav, the tractor

dashed the motorcycle and the claimant sustained injuries.

It is stated that the police have registered the FIR in Crime

No. 165/2015. It is further stated that he was inpatient

for 10 days, was earning Rs.15,000/- per month and he

was aged 34 years as on the date of accident.

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3. On the issuance of notice, respondent No.1

remained absent and placed ex-parte. Respondent No.2

filed statement of objections denying the petition

averments. The second respondent denied the

involvement of the tractor in the said accident. It is

further specifically contended that the injuries were due to

self fall of the claimant himself. The Tribunal on

consideration of the pleadings of both sides, framed the

following issues:

1. Whether the petitioner proves that, on 01/04/2015 at 09.30 a.m., when the petitioner along with his friend Dagadu Jadhav were proceeding on Motorcycle No. MH-13/M.5727 from Maravde-Yadrav. The petitioner himself was riding the said motorcycle in slow land cautious manner by observing all road traffic rules and his friend Dagadu Jadhaf was pillion rider of the motorcycle. When they came near the land of Bapurao S/o. Maruti Suryavanshi, at that time one Tractor No.MH-13/AJ-4693 was came from opposite direction in downal road, the driver of the said Tractor was lost control over it and dashed to the petitioner motorcycle and caused the accident. By this impact the petitioner sustained injured?

2. Whether the petitioner proves that this tribunal has got jurisdiction to try and settle the dispute involved between the parties in this petition?

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3. Whether the Respondent No.2 proves that, due to violation of policy conditions, they are not liable to pay the compensation?

4. Whether the petitioner is entitled for compensation? If so, how much and from whom?

5. What order or award?

4. Petitioner No.1 examined himself as PW-1 and

marked the documents as Ex.P1 to P11. Respondent No.2

examined RW-1 and marked the documents as Ex.R1 and

R2.

5. The Tribunal on appreciation of the material

evidence on record, dismissed the claim petition by

holding that the petitioner has not proved the occurrence

of the accident on 01.04.2015, involving the motor cycle

bearing No.MH-13/M-5727 and the tractor bearing No.MH-

13/AJ-4963.

6. Heard Sri.Koujalagi Chandrakant Laxman, learned

counsel for the claimant/appellant and Sri.Sudarshan.M.,

learned counsel for respondent No.2/insurance company.

7. Learned counsel for the appellant submits that the

claimant while traveling on his motorcycle along with his

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friend on 01.04.2015 met with an accident at about 9:30

a.m., due to the rash and negligent driving of the tractor

bearing No.MH-13/AJ-4963. The complainant was

inpatient for 10 days due to the injuries sustained.

Further, after discharge from the hospital, due to the

accidental injuries the claimant was under rest. As the

claimant could not move around, the complaint has been

filed on 25.05.2015. The Tribunal without taking into

consideration the above aspect has committed an error in

rejecting the claim petition on the ground of delay and

holding that the accident has not been proved by the

claimant. It is further stated that the claimant was

earning Rs.15,000/- per month and was aged 34 years.

Due to the accident he has suffered disability and incurred

expenditure on the treatment. Thus, prays to award

compensation.

8. Learned counsel for the respondent/insurance

company submits that the accident occurred on

01.04.2015, the claimant was inpatient from 01.04.1015

to 08.04.2015. The complaint has been lodged before the

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police on 25.05.2015. There is a delay of 54 days in filing

the complaint with the police and no explanation has been

offered in the complaint. The FIR does not state the

reason for the delay in lodging the complaint. It is further

stated that though the claimant was inpatient from

01.04.2015 to 08.04.2015, no MLC intimation is given to

the jurisdictional police by the hospital. The involvement

of the offending vehicle, tractor bearing No.MH-13/AJ-

4963 is not proved. The Tribunal is justified in rejecting

the claim petition. Thus, prays to dismiss the appeal.

9. Having heard learned counsel for the parties and

perused the appeal papers, the point that would arise for

consideration is:

Whether the order of the Tribunal needs inference of this Court?

10. Our answer to the above point is in negative for

the following reasons:

It is the specific case of the claimant that he met

with the accident on 01.04.2015, while riding the motor

cycle bearing No.MH-13/M-5727, due to the rash and

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negligent driving of the tractor bearing No.MH-13/AJ-

4963. It is not in dispute that the complaint was filed on

25.05.2015 and the claimant was inpatient from

01.04.2015 to 08.04.2015. The claimant has made an

attempt to explain the delay by referring to the treatment

from 01.04.2015 to 08.04.2015 i.e., 8 days. If the

injuries were sustained due to the accident the hospital

would have given MLC intimation to the jurisdictional

police. In the present case, no intimation was given to the

police. The complaint has been lodged on 25.05.2015,

after a delay of 54 days. The contention of the claimant

that due to the hospitalization and due to the injuries

sustained, he could not immediately file the complaint with

the police is not acceptable. The complaint has been filed

by the claimant through one Abhimanyu. There was no

impediment for the claimant to file police complaint lodged

immediately after the accident through friend. The burden

of proof is on the claimant to prove that he met with an

accident involving the offending vehicle. The evidence

placed on record would not demonstrate or prove the case

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of the claimant that he met with an accident on

01.04.2015 involving the tractor bearing No.MH-13/AJ-