Karnataka High Court
Bhikaji S/O Baliram Desai vs Uday S/O Shankar Pawar on 11 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:725
MFA No. 22970 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.22970 OF 2011 (MV-I)
BETWEEN:
BHIKAJI S/O. BALIRAM DESAI
AGE: 41 YEARS, OCC: AGRICULTURE NOW-NIL,
R/O AT POST BELWATTI, TQ. AND DIST. BELAGAVI.
...APPELLANT
(BY SRI. SRINIVAS NADAMANI, ADVOCATE FOR
SRI. JAGADISH PATIL, ADVOCATE)
AND:
1. UDAY S/O SHANKAR PAWAR,
AGE: 34 YEARS, OCC: BUSINESS,
R/O: BAHARAT NAGAR, MACHHE,
TQ. and DIST. BELAGAVI.
(OWNER OF YAMAHA GLADIATOR MOTOR CYCLE BEARING
NO: KA-22/X-7052)
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
Digitally MADIWALE ARCADE, 1ST FLOOR, CLUB ROAD,
signed by BELAGAVI-01
SAMREEN
SAMREEN AYUB
DESHNUR
(INSURER OF YAMAHA GLADIATOR MOTOR CYCLE
AYUB
DESHNUR Date: BEARING NO: KA-22/X-7052)
2024.01.29
15:27:13 ...RESPONDENTS
+0530
(BY SRI. S.K. KAYAKMATH, ADVOCATE FOR R2;
R1 SERVED)
THIS MISCELLAENOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD
DTD:28-02-2011 PASSED IN MVC.NO.2370/2008 ON THE FILE OF
THE III-ADDL. SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
BELAGAVI, DISMISSING THE PETITION FILED UNDER SECTION 166
OF MV ACT, 1988.
THIS MISCELLAENOUS FIRST APPEAL, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:725
MFA No. 22970 of 2011
JUDGMENT
Though the matter is listed for admission, by consent of
parties, the matter is taken up for disposal.
2. Head Shri. Srinivas Nadamani for Shri. Jagadish
Patil, learned counsel for the appellant and Shri. S. K.
Kayakamath, learned counsel for respondent No.2.
3. Present appeal is preferred against the judgment
and award passed in MVC No.2370/2008 dated 28.02.20211 on
the file of III Additional Senior Civil Judge and Additional MACT,
Belagavi.
4. Facts in brief for disposal of the appeal are as
under:
4.1. A claim petition came to be filed under Section 166
of the Motor Vehicles Act, 1988 (hereinafter referred to as the
'M.V. Act) for brevity), claiming that in a road traffic accident
occurred on 26.04.2008 at about 7.00 p.m. involving a motor
cycle bearing registration No.KA-22/X-7052, injured sought for
compensation.
5. The claim petition was resisted by filing necessary
written statement by the Insurance Company.
NC: 2024:KHC-D:725
6. Based on the rival contentions, the Tribunal raised
necessary issues and recorded the evidence of the parties. The
injured-claimant was examined as PW.1, Dr. Satish D. Patil is
examined as PW.2 and Sri. Sannamallikarjun alleged
eyewitness to the accident is examined as PW.3. The claimants
placed on record 19 documents which were exhibited and
marked at Ex.P.1 to P.19.
7. As against the evidence placed on record by the
claimant, the officer of the Insurance Company by name Sri.
Shivkumar Nijagini Bendigeri is examined as RW.1 and he
placed on record two documents i.e., MLC register with case
sheet and X-ray film and Insurance policy which were exhibited
and marked at Ex.R.1 and R.2 respectively.
8. The learned Trial Judge after consideration of oral
and documentary evidence placed on record, has dismissed the
claim petition of the claimant.
9. Being aggrieved by the same, the claimant is in
appeal.
10. Shri. Srinivas Nadamani for Shri. Jagadish Patil,
learned counsel for the appellant, reiterating the grounds urged
in the appeal, contended that the Tribunal has not properly
NC: 2024:KHC-D:725
appreciated the material evidence placed on record while
answering the issue No.1 in negative and sought for allowing
the appeal.
11. He pointed out that the FIR and other material
document substantially established that the motor cycle
bearing registration No.KA-22/X-7052 was involved in the
accident and the reasoning assigned by the learned Trial Judge
in holding that there is no involvement of the motor cycle and
the claimant has not sustained injuries in the road traffic
accident, is incorrect and sought for allowing the appeal.
12. Per contra, Shri. S. K. Kayakamath, learned counsel
for respondent No.2-Insurance Company supported the
impugned judgment by contending that the Tribunal has rightly
appreciated the material evidence on record especially the
contents of Ex.R.1 and sought for dismissing the appeal.
13. In view of the rival contentions of the parties, this
Court perused the material on record meticulously including the
Trial Court record.
14. On such perusal of the material on record, it is seen
that Ex.R.1 is the MLC report issued by the Civil Hospital and
produced by the respondent No.2. In Ex.R.1 while narrating
NC: 2024:KHC-D:725
the history, it has been mentioned that the injured sustained
injuries in respect of road traffic accident at about 7.00 p.m.,
on 26.04.2008 at Belgundi-Belwatti road when he was riding
Hero Honda Splendor and it was hit by tempo from opposite
side. There was no history of head injury. From the said
content of Ex.R.1, it is clear that the claimant himself has given
information to the concerned doctor about the occurrence of
accident and there is a mention of a tempo which hit the motor
cycle.
15. The said information having been furnished by the
very injured himself to the doctor and the same has been
recorded in usual course, presumption as to the veracity of
Ex.R.1 needs to be drawn as is contemplated under Section
114(e) of the Indian Evidence Act, 1872.
16. Further, there is no mention in the claim petition
about the involvement of the motor cycle bearing registration
No.KA-22/X-7052. How can a tempo be considered as a two
wheeler bearing registration No.KA-22/X-7052, is a question
that remains unanswered on behalf of the claimant. The Hero
Honda motor cycle which was ridden by the claimant is not
having a registration No.KA-22/X-7052 either.
NC: 2024:KHC-D:725
17. Under such circumstances, the Tribunal has rightly
concluded that a motor cycle bearing registration No.KA-22/X-
7052 is not involved in the accident and the claimant has
falsely laid a claim for the alleged injury in a road traffic
accident involving a motor cycle bearing registration No.KA-
22/X-7052.
18. Even after re-appreciation of the material on
record, this Court does not find it deem fit to admit the matter
for further consideration.
19. Accordingly, the following order is passed:
ORDER
(i) Admission declined. Appeal is dismissed.
(ii) No order as to costs.
Sd/-
JUDGE
SMM
