Karnataka High Court
Allabhax S/O. Maliksab Banadar vs Babusab S/O. Aminsab Chapti on 29 February, 2024
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MFA No. 20293 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 20293 OF 2012 (MV-I)
BETWEEN:
ALLABHAX S/O. MALIKSAB BANADAR,
AGE: 54 YEARS, OCC: SERVICE,
R/O. TALLUR, TALUK: SAUNDATTI,
DISTRICT: BELGAUM.
...APPELLANT
(BY SRI. H. M. DHARIGOND, ADVOCATE)
AND:
1. BABUSAB S/O. AMINSAB CHAPTI,
AGE: MAJOR, OCC: BUSINESS,
R/O. NEAR GANDHI NAGAR,
MUNAVALLI, TALUK : SAUNDATTI,
DISTRICT: BELGAUM.
2. THE NATIONAL INSURANCE COMPANY LTD,
BRANCH OFFICE, APMC YARD, SAUNDATTI,
DISTTICT: BELGAUM THROGUH
Digitally signed THE DIVISIONAL MANAGER,
by ROHAN
HADIMANI T NATIONAL INSURANCE COMPANY LIMITED,
Location: HIGH DIVISIONAL OFFICE, RAMDEV GALLI, BELGAUM.
COURT OF
KARNATAKA ...RESPONDENTS
(BY SRI. S. S. JOSHI, ADV. FOR RESPONDENT NO.2,
NOTICE TO RESPONDENT NO.1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE JUDGMENT AND AWARD DATED 15-10-2011 PASSED IN
MVC NO.1618/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND ADDITIONAL MACT SAUNDATTI, AND AWARD JUST AND
REASONABLE COMPENSATION UNDER THE ALL PERMISSIBLE HEADS
IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 20293 of 2012
JUDGMENT
This appeal is filed by the claimant seeking to set aside
the judgment and award dated 15.10.2011 passed in MVC
No.1618/2010 on the file of Prl. Senior Civil Judge and
Additional MACT, Saundatti (for short, 'Tribunal'), whereby
Tribunal rejected the claim petition on the ground that the
appellant/claimant failed to prove the occurrence of the
accident.
2. Brief facts of the case are that on 01.01.2010 at
about 5.00 pm, the appellant and his relative were
proceeding on motorcycle bearing No.KA-24/H-4337 and the
appellant was the pillion rider. The rider of the said
motorcycle was riding the same in a rash and negligent
manner, at that time, suddenly a dog came in front of the
vehicle and the rider of the motor cycle dashed against the
dog and vehicle fell on the road and caused accident. Due to
which, the appellant pillion rider and rider sustained fractural
injuries all over his body. He was shifted to Community
Health Centre at Yaragatti and thereafter he was shifted to
Ganga Surgical and fracture Clinic at Gokak, where he was
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inpatient from 01.01.2010 to 12.01.2010, he underwent
operation and further he was admitted to hospital to remove
the implants. Hence, claim petition was filed seeking for
compensation. The claim petition was opposed by the
respondent, by denying the averment of claim petition.
3. The claimant examined himself as PW1 and got
marked Exs.P1 to P123. The respondent examined RW1 and
got marked Exs.R1 to R3. The Tribunal after considering the
evidence on record has come to the conclusion that the
appellant has failed to prove the accident by producing
proper and cogent evidence and proceeded to dismiss the
claim petition.
4. Shri. H.M. Dharigond, learned counsel appearing
for the appellant submits that the Tribunal committed grave
error in rejecting the claim petition without appreciating the
evidence available on record. It is submitted that the
investigation material indicates that the accident took place
on 01.01.2010 and the appellant was pillion rider on
motorcycle bearing No.KA-23/H-4337 and without looking
into the investigation material and the evidence of the PW1,
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the Tribunal had come to the incorrect conclusion that there
was no accident taken place on 01.01.2010 and proceeded to
dismiss the claim petition.
5. Per contra, Sri. S.S. Joshi, learned counsel
appearing for the respondent/Insurance Company supports
the impugned judgment and award of the Tribunal and
submits that in collusion with the police, a false complaint
was been filed stating that on 01.01.2010, accident has
taken place involving the vehicle in question. It is submitted
that as per the case of prosecution as well as the claimant,
the vehicle was ridden by his relative and the appellant was
the pillion rider. Immediately after the accident, they
dragged on the road for about 5 to 6 feet and in the process,
there was injury to ankle and to the hands of the rider.
However, the MVI report does not indicate any damage to
the vehicle in question. Hence, version of the appellant
cannot be believed.
6. It is further submitted that the appellant in his
evidence had stated that the rider of the vehicle has also
suffered injuries. However, no medical documents are placed
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on record for suffering of such injuries, which creates a
further doubt with regard to the happening of the accident
itself. Sri. S S. Joshi, learned counsel further submits that
the Tribunal by well reasoned order has come to a conclusion
that there is no accident taken place and the petitioner has
failed to establish the same by cogent and acceptable
evidence before the Tribunal. Hence, he seeks to dismiss the
appeal.
7. Having heard the learned counsel for the parties
and on perusal of Tribunal records, the following point would
raise for consideration in this appeal:
a) Whether the Tribunal has not justified in rejecting
the claim petition filed by the respondent?
9. The answer to the above point is in the negative
for the following reasons:
10. The Tribunal from paragraphs 14 to 18 has
recorded a categorical finding that the claim is filed to
establish a factum of taking treatment at Community Health
Centre, Yaragatti and thereafter at Umarani hospital, Gokak.
The Tribunal has recorded the finding that EX-P4-MVI report
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does not indicate the damage to the vehicle in question.
This Court on perusal of evidence available on record which
indicates that, immediately after the incident the
Jurisdictional Police have registered the information as Crime
No.3/2010 and after completion of investigation filed charge
sheet against the rider of the motor cycle. EX-P3-spot
panchanama indicates that the accident in question has
occurred. EXs-P5 and P6 are the Wound Certificates issued
by Ganga Surgical and Fracture Clinic, Gokak and
Community Health Centre, Yargatti. EX-P6 indicates that the
appellant has visited the said hospital on 01.01.2020, at 5.00
P.M. The said doctor at CHC, Yargatti has recorded the
injuries suffered by the appellant and also recorded his
opinion and issued the Wound Certificate at EX-P6. Similarly,
EX-P5 issued by the Ganga Surgical and fracture Clinic that
the appellant visited their hospital on 01.01.2010 and taken
treatment. EX-P8 is the Identity Card issued by the
concerned hospital for having provided treatment to the
appellant. EXs-P9 to P11 is the medical records indicate that
the appellant/claimant has been diagnosed for the injuries
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suffered by him in the road accident. EX-P12 is a Medico-
Legal Certificate issued by Ganga Surgical and Fracture
Clinic, Gokak, which analyzed the history of injury and
treatment provided to the appellant. The said hospital also
issued Disability Certificate at EX-P13, wherein it is
mentioned that the appellant has suffered 45% disability to
left lower limb and 15% to left upper limb, due to the
accident on 01.01.2010. The appellant has placed on record
the medical prescriptions and bills for taking treatment in the
hospital.
11. On perusal of evidence of PW1 and RW1, it clearly
indicates that the appellant has suffered injuries in the road
accident dated 01.01.2010. On perusal of evidence of RW1,
he has clearly admitted that he has gone through the records
and come to know that the appellant has suffered injuries
and took treatment in the hospital. The evidence on record
clearly indicate that the appellant has suffered injuries in the
road accident dated 01.01.2010. This Court is of the
considered view that the Tribunal has not justified in
recording the finding that the appellant has failed to prove
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the accident in question by producing cogent and accidental
evidence. The finding of the Tribunal that the appellant has
failed to produce the documents of the Community Health
Centre, Yaragatti, is contrary to the record available at EX-
P6. EX-P6 is the certificate issued by the Community Health
Centre, Yaragatti which clearly indicates that the
appellant/injured has visited the said hospital with history of
RTA and he has been examined to the aforesaid injuries by
the doctor. Hence, this Court is of the considered view that
the Tribunal has committed grave error in dismissing the
claim petition.
12. For the aforementioned reasons, I pass the
following order.
ORDER
a) Appeal stands allowed.
b) The impugned judgment and award of
the Tribunal is hereby set aside.
c) The matter is remitted back to the
Tribunal for reconsideration after affording
reasonable opportunity to both the parties
to adduce their evidence, the Tribunal is
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directed to consider the claim petition on its
merits and in accordance with law and
determine the compensation payable to the
appellant.
d) Without waiting further notice from the
Tribunal, the parties shall appear before the
Tribunal on 4.4.2024 for early disposal of
claim petition.
e) The Tribunal is directed to give priority to
the claim petition and dispose off the same
as early as possible, but not later than eight
months from the date of receipt of copy of
the order.
Sd/-
JUDGE
RKM/PMP
