Karnataka High Court
Sri B Sagar vs Shiavakumar on 1 March, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:8632
MFA No. 6949 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO.6949 OF 2016(MV-I)
BETWEEN:
SRI. B.SAGAR S/O BASAVARAJ,
AGED ABOUT 27 YEARS,
R/AT NO.4, KANAKAMBARA ROAD,
KASHI VISHWANATHA LAYOUT,
K.R.PURAM, BENGALURU-560 036.
...APPELLANT
(BY SMT. V.VETRI LAXSHMI., ADVOCATE FOR
SRI. VASANTAPPA., ADVOCATE)
AND:
1. SHIAVAKUMAR S/O BORAIAH,
MAJOR BY AGE,
R/AT KYASAPURA VILLAGE & POST,
KOOTAGAL HOBLI,
RAMANAGARA TALUK & DISTRICT-562 108.
Digitally signed by
THEJASKUMAR N 2. IFFCO TOKIO GENERAL INSURANCE CO.LTD.,
Location: HIGH NO.141, 5TH FLOOR, SRI. SHANTHI TOWERS,
COURT OF KASTHURINAGAR, EAST NGEF,
KARNATAKA BENGALURU-560 043.
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(R1-SERVED AND UNREPRESENTED
BY SRI. B.PRADEEP., ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED: 17.03.2016
PASSED IN MVC NO.4151/2014 ON THE FILE OF THE I
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MFA No. 6949 of 2016
ADDITIONAL SMALL CAUSES JUDGE, XXVII ACMM,
BENGALURU.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Smt.V.Vetri Laxshmi., learned counsel on behalf of
Sri.Vasanthappa., for the appellant and Sri.B.Pradeep., learned
counsel for respondent No.2 have appeared in person.
2. Notice to respondents was ordered on 13.02.2017.
A perusal of the office note depicts that respondent No.1 is
served and unrepresented. He has neither engaged the services
of an advocate nor conducted the case as party in person.
3. Though the appeal is listed today for admission,
with the consent of learned counsel for the respective parties, it
is heard finally.
4. For the sake of convenience, the parties shall be
referred to as per their status and rankings before the Tribunal.
5. It is the case of the claimant that on the 5th day of
November 2013 at about 9:45 am., he was riding his
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motorcycle bearing No.KA-05-HX-6119 along with his friend by
name Shivakumar on Bengaluru - Tumkur Road slowly,
cautiously and carefully by observing traffic rules and
regulations. When they reached near Jindal flyover, at that
time, driver of Indica Car bearing Registration No.KA-01-D-
1049 drove the car in a rash and negligent manner and hit the
motorcycle of the claimant. Due to the impact, claimant fell
down and sustained grievous injuries all over the body.
Immediately, he was shifted to Columbia Asia Hospital and
admitted as an in-patient for the period of one month and he
has undergone clinical examination and X-rays which revealed
that he sustained fracture of right femur and punctured wound
over distal aspect right thigh and other injuries. He has
undergone operation of right femur and screws were fixed and
he was discharged with an advice for follow up treatment,
physiotherapy and periodical review for every week.
Contending that the accident occurred on account of rash and
negligent driving of the car, the claimant filed claim petition
seeking compensation.
In response to the notice, the first respondent appeared
through his counsel. He did not file written statement. Hence,
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the same was taken as nil. The second respondent Insurance
Company appeared through its counsel and filed written
statement and denied the contents of the claim petition. It is
admitted that the second respondent is the insurer of offending
vehicle bearing No.KA-01-D-1049, but the liability is subject to
the terms and conditions of insurance policy. Among other
grounds it prayed for dismissal of the claim petition.
Based on the above pleadings, the Tribunal framed
Issues. The parties led evidence and marked the documents.
The Tribunal vide Judgment dated:17.03.2016 dismissed the
claim petition. It is this Judgment that is called into question in
this appeal on several grounds as set-out in the Memorandum
of appeal.
6. Smt.V.Vetri Laxshmi., learned counsel for the
appellant in presenting her arguments vehemently contended
that the Judgment and Award of the Tribunal is contrary to the
law and evidence on record and probabilities of the case. She
argued by saying that the Tribunal has erred in rejecting the
claim petition. Counsel therefore, submits that the matter
requires a remand.
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By way of reply to this contention, learned counsel for the
Insurance Company justified the Judgment and award of the
tribunal. He submits that the appeal is devoid of merits and the
same may be dismissed.
Heard, the contentions urged on behalf of the respective
parties and perused the appeal papers and also the records
with utmost care.
7. The point that requires consideration is whether the
rejection of the claim petition is just and proper?
8. The facts are sufficiently stated and do not require
reiteration. Suffice it to note that the alleged accident appears
to have occurred on the 5th day of November 2013. However,
the claimant made a complaint on the 27th day of January 2014
at about 3:00 pm., There is a delay in making a complaint.
An attempt was made on behalf of the claimant that the
owner of the offending vehicle assured him to bear the medical
expenses and requested him not to file a complaint. Hence, he
did not complain well in time. In this Court also, he has
adhered to the said contention. The contention cannot be
accepted. The reason is simple. There is nothing on record
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about the alleged assurance made by the owner of the
offending vehicle. As per the discharge summary (Ex.P.9), the
claimant appears to have taken treatment as an in-patient from
05.11.2013 to 09.11.2013. It is strange to note that even after
the discharge, no efforts are made by the claimant to complain.
Hence, it can be safely concluded that it is not a genuine case.
Furthermore, there is a difference in mentioning the
vehicle number in the complaint, FIR and the statement. It is
pivotal to note that in the MLC Register, there is no mention
about the vehicle number. The Tribunal extenso referred to the
material on record and concluded that the claimant had failed
to establish the date, time, and place of the accident and also
the involvement of the offending vehicle and rejected the claim
petition. In my view, the conclusion so arrived at by the
Tribunal is just and proper. I find no reason to interfere with
the judgment.
For the reasons stated above, the appeal is devoid of
merits and it is liable to be dismissed.
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9. Resultantly, the Miscellaneous First Appeal is
dismissed.
Sd/-
JUDGE
TKN
