Karnataka High Court
S.D. Gangadhara vs Ramesh B.B on 5 January, 2024
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MFA No. 5266 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 5266 OF 2016 (MV-D)
BETWEEN:
S.D. GANGADHARA
S/O DALEGOWDA, AGED ABOUT 42 YEARS
R/O SHAMBUNATHAPURA VILLAGE
KASABA HOBLI, ARKALGUD TLAUK-573 102
HASSAN ... APPELLANT
(BY SRI.B.CHETHAN, ADV.)
AND:
1. RAMESH B.B.
S/O LATE BOREGOWDA
AGED ABOUT 46 YEARS
2. SURESH.B.B.
S/O LATE BOREGOWDA
AGED ABOUT 45 YEARS
RESPONDENT NOS 1 & 2 ARE R/OF
BOOVANAHALLI VILLAGE
Digitally signed by KASABA HOBLI, HOLENARASIPURA
MALA K N TALUK-573 211, HASSAN DIST
Location: HIGH COURT
OF KARNATAKA 3. YASHODAMMA
D/O LATE BOREGOWDA
W/O LATE VAJREGOWDA
AGED ABOUT 49 YEARS
R/OF BRAMIN'S BEEDI
KOTE, ARAKALGUD TOWN
HASSAN DISTRICT-573 201
4. MANJULA
D/O LATE BOREGOWDA
W/O JAGADISH, MAJOR
R/OF NANJUNDEGOWDANA KOPPALU
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MFA No. 5266 of 2016
VILLAGE, SHRAVANABELAGOLA
HOBLI, CHANNARAYAPATNA
TALUK-573 116, HASSAN
5. THE MANAGER
NATIONAL INSURANCE COMPANY LIMITED
MANJUNATHA COMPLEX, OLD BUS STAND ROAD
HASSAN, HASSAN DISTRICT-573 201
... RESPONDENTS
(BY SRI.A.P.PULAKESHI, ADV. FOR R1 TO R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 1.3.2016
PASSED IN MVC NO.558/2015 ON THE FILE OF THE SENIOR
CIVIL JUDGE, JMFC, MACT, HOLENARASIPUR, AWARDING A
COMPENSATION OF RS.2,12,000/- WITH INTEREST @ 9% P.A
FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.11.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the first respondent has challenged
the judgment and award dated 01.03.2016 in
M.V.C.No.558/2015 passed by the Senior Civil Judge &
MACT., Holenarasipur ('the Tribunal' for short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, the father of the
petitioners' by name Boregowda the deceased, on
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21.12.2014 at about 4:15 p.m., while walking on the
footpath, near Kote Arkalgud bypass road was hit and
injured by a motor cycle bearing registration No.KA-13-
Y-9527. He was treated at Government Hospital,
Arkalgud and Janapriya Hospital, Hassan, but he
succumbed to death. The petitioners being the children
as dependants sought for grant of compensation of Rs.25
Lakhs before the Tribunal. The claim was opposed by the
respondents. After taking the evidence, the Tribunal
awarded compensation of R.2,12,000/-, directing the
owner of the motor cycle to pay the compensation by
exonerating the Insurance Company. Aggrieved by the
same, the owner of the motor cycle i.e., the first
respondent has filed this appeal on various grounds.
4. Heard the arguments of Shri. Chethan B,
learned counsel for respondent No.1, Shri. A.P.
Pulakeshi, learned counsel for the petitioners and Smt.
Geetharaj, learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for
the first respondent that soon after the accident, the
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deceased was taken to the Government Hospital,
Arkalgud and the vehicle number was informed to the
Doctor, from there, he was taken to the Janapriya
Hospital, Hassan. In the written statement, the Insurance
Company had not taken any contention that the vehicle
had been fixed. The only defense raised was that the
rider of the motor cycle did not possess a valid driving
license and the Insurance Company cannot urge what
has not been pleaded. The Tribunal misconceived the
evidence let in by the Insurance Company and made a
wrong assumption that the motor cycle has been fixed,
the owner had joined hands with the petitioners and
directed him to pay the compensation, which is
erroneous and calls for interference.
6. Per contra, learned counsel for the Insurance
Company has contended that when the deceased was
brought to the Government Hospital, Arkalgud, the
registration number of the motor cycle was not informed
to the Doctor. When the deceased was brought to the
Janapriya Hospital for treatment, the vehicle number
furnished as KA-13-X-9525. Contrary, there is a police
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intimation issued by the Doctor mentioning the vehicle
number as KA-13-Y-9527. Accordingly, an FIR was filed.
The charge sheet was also culminated against the said
motor cycle. When the motor cycle bearing Reg. No.KA-
13-Y-9527 was not at all involved, the first respondent
being the owner joined hands with the petitioners for the
sake of compensation, the Tribunal has rightly
appreciated the evidence on record and came to the
conclusion that there is a nexus between the petitioners
and the first respondent in fixing the motor cycle,
directed the owner of the motorcycle to pay the
compensation, which calls no interference.
7. Learned counsel for the petitioners contended
that the Tribunal has misread the registration number of
the motorcycle. There is no evidence on record to show
that who gave the information to the Janapriya Hospital
to record the registration number of the motorcycle as
KA-13-X-9525. In fact, from the Janapriya Hospital, the
police intimation was sent to the police as per Ex.P31
that the motorcycle bearing Reg. No. as KA-13-Y-9527
was involved in the accident. When the Insurance
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Company and also the owner of the motorcycle have not
denied the involvement of the motorcycle in question and
the accident, they cannot be permitted to lead contrary
evidence and the finding recorded by the Tribunal that
the petitioners have joined hands with the first
respondent for the sake of compensation is erroneous
and direction be issued to the Insurance Company to
pay the compensation. They are not interested in inter se
dispute between the owner of the motorcycle and the
Insurer, but award amount has to be deposited.
8. I have given my anxious consideration to the
arguments addressed on both sides and also perused the
materials on record.
9. The contention of the Insurance Company is
that the motorcycle bearing Reg. No.KA-13-Y-9527 was
not at all involved in the accident. Contrary is the version
of the petitioners. The petitioners have placed the
evidence before the Tribunal that the motorcycle bearing
Reg. No.KA-13-Y-9527 was involved in the accident. The
Insurance Company in the written statement though not
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contended about the non involvement of the said
motorcycle, the evidence is placed to explain that the
prosecution papers have been filed to suit the motorcycle
bearing Reg. No.KA-13-Y-9527.
10. The Hon'ble Apex Court in umpteen number
of judgments laid down that the information furnished
immediately after the accident to the Hospital is a
relevant piece of material; as subsequently any change in
the history of the accident was after much flowing of the
water. In this context, if the evidence on record explains
that on 21.12.2014 at 4:55 p.m, when the deceased was
brought to the Government Hospital, Arkalgud, the
history furnished that the road traffic accident around
4:45 p.m. on 21.12.2014 near Tara Hospital hit by two
wheeler. This has been certified in Ex.R2, the MLC
extract of Government Hospital, Arkalgud. There is no
dispute that from the Government Hospital, Arkalgud, the
deceased was brought to the Janapriya Hospital, Hassan
for treatment on 21.12.2014. Ex.R1, is an undisputed
document, which is the Medico Legal Register (MLC)
maintained by Janapriya Hospital. The recitals in Ex.R1
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goes to show that the deceased was brought to the
Janapriya Hospital on 21.12.2014 and he was admitted
as an inpatient No.2721/2, brought by one B.B. Suresh.
The history furnished to the said hospital reads as
follows:
"History of Road Traffic Accident on
21.12.2014 at around 4:30 p.m, Tara Hospital
near KSRTC Bus Depot, hit Bike No.KA-13-X-
9525, First Aid done in Government Hospital,
Arkalgud."
This is what the Insurance Company is banking upon that
the motorcycle bearing Reg. No.KA-13-X-9525 was
involved in the accident. To explain that the existence of
such a motorcycle, the Insurance Company has produced
the 'B' register extract issued by the RTO, Hassan as per
Ex.R5. The contents of Ex.R5 goes to explain that the
motorcycle bearing Reg. No.KA-13-X-9525 is a TVS
motorcycle registered in the name of one Shantha Kumar
s/o. Marulasiddaiah, No.167, Kalana Koppalu Village,
Arsikere Taluk, Hassan District. In view of this, now it is
for the petitioners to explain whether the motorcyle
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bearing Reg. No.KA-13-Y-9527 was involved in the
accident and not the motorcycle bearing Reg. No.KA-13-
X-9525.
11. To explain the motorcycle bearing Reg.
No.KA-13-Y-9527 was involved in the accident, the
petitioners apart from relying upon the prosecution
papers, such as, FIR, complaint, charge sheet, spot
mahazar, seizure mahazar, spot sketch, Post Mortem
report, IMV report, Inquest Mahazar as per Exs.P1 to P9,
they also relied upon Ex.P31, the Police intimation issued
to the Arkalgud Police by the Janapriya Hospital. On
perusal of Ex.P31, it is pertinent to note that it is reading
as Police intimation, Sub Inspector of Police, Arkalgud
Police Station dated 21.12.2014 reporting that one
Boregowda, was admitted to Janapriya Hospital on
21.12.2014 with a history of road traffic accident on the
very day at around 4:30 p.m. Tara Hospital near KSRTC
Bus Depot, Arkalgud, hit by the vehicle viz., Bike bearing
Reg.No.KA-13-Y-9527. This intimation was signed by
one Dr. Abdul Basheer, Orthopaedic Surgeon. Ex.P31 as
well Ex.R2, both are generated from the Janapriya
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Hospital. Interesting to note that Ex.P31 was in the
custody of the petitioners and it was produced only after
cross-examination of the petitioners that it was not given
to the police, but it was retained by the petitioners
themselves only. If Ex.P31 is to be appreciated, it is
relevant to read Ex.R1. As referred supra, the
registration number of the bike referred in Ex.R1 is KA-
13-X-9525, contrary Ex.P31 speaks the registration
number of the bike as KA-13-Y-9527. Hence, there is a
clear contradiction between Ex.R1 and Ex.P31 issued by
the Janapriya Hospital. This disparity is not explained in
the evidence by the petitioners or in the course of the
cross-examination of respondents' witnesses.
12. Ex.P2 is the complaint filed to the police
directly at 9 a.m. on 22.12.2014 alleging the accident on
the previous day mentioning the motorcycle bearing
Reg.No.KA-13-Y-9527. Ex.P31 never reached the hands
of the police. There is a delay in filing the complaint. It
is for the petitioners to explain who has furnished the
registration number of the motorcycle to Janapriya
Hospital. As seen from Ex.R2, when the deceased was at
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Government Hosptial, Arkalgud, the registered number of
the motorcycle was not known to any one. Only when the
deceased as an injured brought to the Janapriya Hospital,
the motorcycle number is mentioned as KA-13-X-9525.
13. Adverting to the arguments of the learned
counsel for the first respondent that there may be a
mistake in writing the registration number as 'X' and 'Y'
while writing it resembles identical and instead writing
9527, the hospital staff has written as 9525 and the
motorcycle bearing Reg.No.KA-13-X-9525 was not at all
involved in the accident. If this argument is to be
appreciated, the petitioners are required to offer
explanation why the motorcycle number was not
furnished to the Government Hospital, Arkalgud and why
the motorcycle bearing Reg.No.KA-13-X-9525 was
furnished to the Janapriya Hospital. From the same
hospital, two motorcycles are emanating and both are
belonging to different owners. The information furnished
to the Janapriya Hospital plays an important role.
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14. Insofar as Ex.P31 is concerned, it was made
known to the world only before the Tribunal. Generally
the Police Intimation are being sent from the hospital
staff. But Ex.P31, carries the signature of Dr. Abdul
Basheer, Orthopaedic Surgeon. In Ex.P31, it is clearly
mentioned that the Suresh, the son of the deceased had
brought the injured to the Janapriya Hospital, the same is
in conformity with Ex.R1. So, the registration number of
the motorcycle was furnished to the Janapriya Hospital
by the son of injured i.e., the second petitioner in this
case.
15. Adverting to the finding recorded by the
Tribunal, the Tribunal has clearly referred to the evidence
of the petitioners. The accident took place at 4:45 p.m.,
on 21.12.2014. The police complaint was filed at 9 a.m.,
on 22.12.2014. There is a delay of 29 hours in reporting
the accident to the Police. As per the information
furnished by the second petitioner being the complainant,
an FIR was registered and on the same line charge sheet
was filed against the motorcycle bearing Reg.No.KA-13-
Y-9527. There was no investigation by the police
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regarding non involvement of the motorcycle bearing
Reg.No.KA-13-X-9525 as referred in Ex.R1. Hence, the
Insurance Company has brought before the Tribunal that
the motorcycle involved in the accident was KA-13-X-
9525 and not KA-13-Y-9527. The Tribunal correctly
appreciated the evidence.
16. As seen from the material on record, nothing
is demonstrated that the first respondent has joined
hands with the petitioners in informing the Police the
motorcycle bearing Reg.No.KA-13-X-9525. The evidence
did not bring out that the first respondent and the
petitioners are the relatives or friends or known to each
other as both hails from different Taluks. Hence, without
any material on record, the Tribunal came to the
conclusion that the first respondent has joined hands
with the petitioners in giving his motorcycle is not based
on any evidence. When the evidence on record clearly
points out that the motorcycle bearing Reg.No.KA-13-X-
9525 has caused the accident, the petitioners cannot
claim compensation against the motorcycle, which was
not at all involved in the accident. The Tribunal ought to
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have dismissed the claim against the motorcycle in
question giving option to the petitioners to proceed
against the motorcycle bearing Reg.No.KA-13-X-9525, if
they are so advised.
17. Interesting to note that, the deceased was
brought to Janapriya Hospital at 6:00 p.m, on
21.12.2014 and on the very day he died at 10:30 p.m,
during transit to Vikram Hospital, Mysuru. Ex.P26
contains prescription dated 22.12.2014 and bills worth
Rs.13,252.13 for having purchased at 11:33:53 hours on
21.12.2014 at Janapriya Hospital. This shows even
before the accident medicines were purchased.
Production of Ex.P31 at belated stage, which is signed by
Dr. Abdul Basheer, Orthopaedic Surgeon, gives clear
inference how the records are tampered by the
petitioners. They have not come before the Tribunal with
clean hands. This kind of conduct of the petitioners and
also the Doctor shall have to be deprecated.
18. Hence, the order of the Tribunal in assessing
the compensation and fixing the liability against the first
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respondent is erroneous and calls for interference.
Hence, the appeal merits consideration. In the result,
the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award is set
aside;
(iii) The petition in MVC No.558/2015 filed under
Section 166 of the Motor Vehicles Act by the
petitioners, is dismissed.
(iv) The petitioners are at liberty to proceed
against the motorcycle bearing Reg.No.KA-
13-X-9525, if they are so advised.
(v) The amount in deposit, if any, shall be
returned to the first respondent.
Sd/-
JUDGE
*CP
CT:HS
*Corrected v/chamber order
dt.12.1.2024
