Karnataka High Court
Rizwana Begum vs Santosh And Anr on 3 January, 2024
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NC: 2024:KHC-K:139
MFA No. 200221 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MISCL. FIRST APPEAL NO. 200221 OF 2018 (MV-I)
BETWEEN:
RIZWANA BEGUM
W/O CHAND PASHA SHAIK,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O. MANGALGI, TQ: HUMNABAD,
DIST: BIDAR, NOW RESIDING AT ABDUL
FAIZ DARGAH NEAR POLICE QUARTERS
BIDAR DIST.PIN CODE NO.584101.
...APPELLANT
(BY SRI. BABU H. METAGUDDA, ADVOCATE)
AND:
1. SANTOSH S/O SHIVBASAPPA WADJE,
AGE: MAJOR, OCC: BUSINESS,
Digitally signed R/O. H.NO.8-11-416, KEB COLONY,
by
KHAJAAMEEN BIDAR, PIN CODE NO.584101.
L MALAGHAN (OWNER OF SPENDER PLUS
Location: High MOTOR CYCLE NO. KA-38/Q-6193)
Court of
Karnataka
2. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
VEERBHADRESHWAR CHAMBERS, DOOR
NO.8-10-133/1 AND 1 A, OPP:NEHRU STADIUM,
BIDAR, PIN CODE NO.584101.
...RESPONDENTS
(BY SMT. PATIL SHANTABAI SUBHASH ADV. FOR R1;
SRI. RAHUL R. ASTURE ADV. FOR R2)
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MFA No. 200221 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO A) CALL FOR RECORDS IN MVC NO.94/2016 ON
THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND ADDL.
MACT AT BIDAR. B) ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND AWARD DATED 03.11.2017 PASSED IN MVC
NO.94/2016 BY THE ADDL. SENIOR CIVIL JUDGE AND MACT AT
BIDAR, AND AWARD THE COMPENSATION OF RS.4,25,000/-
WITH 12% INTEREST.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the dismissal of MVC No.94/2016, by
order dated 03.11.2017, by the Additional Senior Civil
Judge and Addl.MACT, Bidar, claimants are before this
Court.
2. The claim petition was filed seeking
compensation of an amount of Rs.4,25,000/- for the
injuries sustained by the claimant in the accident. It is the
case of the claimant that she was travelling as a pillion
rider on 20.08.2015 along with her husband and was
returning to their house after consulting a doctor. The
husband was riding the bike and when they crossed the
D.G.C. Bank and came near APSRTC Bus stop at
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Basaveshwar circle, another bike came in a high speed
and negligent manner and dashed against the bike of the
claimant. As a result, both the claimant and the husband
sustained injuries. Though the claimant had sustained
injuries initially thinking they might be minor injuries she
did not go to the hospital. After two to three days she
developed severe pain and tenderness in the right arm
and left side of chin. She was taken to Government
Hospital, Bidar on 25.08.2015 and x-ray was obtained,
wherein it was seen that there was fracture of right femur.
Thereafter a complaint was lodged by the husband of the
claimant on 25.08.2015. The court below had dismissed
the claim petition observing that when the accident had
taken place according to them on 20.08.2015 till
25.08.2015 they kept quite and no complaint was lodged.
The court below also observed that in every case the delay
has to be considered basing on the facts of the case.
Further, the court below has observed that if there is a
fracture of the femur next day there will be unbearable
pain and swelling in the part of the fracture but in this
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case the claimant has tolerated the same and the court
below felt that this is not a genuine case and dismissed
the petition.
3. Learned counsel appearing for the claimant
submits that just because the husband of the claimant was
a Police Constable that itself cannot be a ground for the
court below to dismiss the claim petition. He submits that
she had bore the pain for five days and thereafter she
approached the Police and immediately a complaint was
given. There is no dispute about the fact that the claimant
had sustained injuries in the accident. The court below
ought to have considered the case on its merits, instead of
dismissing the same more technically on the ground of
delay in filing the complaint.
4. Learned counsel appearing for the insurance
company submits that the claim that is made is a
fraudulent claim and there are no bonafides and it is
submitted that the court below had rightly observed that
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the fracture of femur would cause unbearable pain and the
claimant had not went to the Doctor for five days. He
submits that her husband being a Police Constable, the
said vehicle is implanted for the purpose of claiming the
compensation. Even the owner of the vehicle has
conveniently remained exparte before the court below and
before the criminal court he has pleaded guilty. He
submits that all these circumstances, shows that there is a
collusion between the claimant and the owner of the
vehicle for the purpose of claiming the compensation. It is
submitted that the court below had rightly dismissed the
claim petition.
5. Having heard the learned counsel on either
side, perused the entire material on record. The accident
had taken place on 20.08.2015 and the complaint was
given on 25.08.2015. As per the medical evidence there is
fracture of right femur. According to the claimant she
could bear the pain for five days and thereafter when she
was not in a position to bear the pain and she went to the
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Doctor. As rightly pointed out by the learned counsel for
the respondent the owner of the vehicle remained ex-parte
before the court below and before the criminal court he
had pleaded guilty. All these circumstances shows that
there is a collusion between the parties and the claimant
has come before the court with suppression of the facts.
Though in every case filing of the complaint with delay
would not be fatal to the case but it has to be analyzed
basing on the facts of each case. As far as the facts and
circumstances of this case are concerned, giving a
complaint after five days goes to the root of the matter
and the court below had rightly dismissed the claim
petition and this Court finds no reasons to interfere.
6. Accordingly, the Appeal stands Dismissed.
i) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
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ii) No costs.
Pending miscellaneous petitions, if any, shall stand closed.
Sd/-
Judge
JJ
