Karnataka High Court
Sri Shoib Ahammed Khan vs Sri Tahlif Pasha on 7 March, 2024
-1-
NC: 2024:KHC:9612
MFA No. 6681 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 6681 OF 2019
(MV-I)
BETWEEN:
SRI. SHOIB AHAMMED KHAN,
S/O SANAULLA KHAN.B,
AGED ABOUT 45 YEARS
R/AT WARD NO.1, NATIONAL TILES,
BIDANAGERE, KASABA HOBLI,
KUNIGAL TOWN-572130,
TUMKUR DISTRICT
ALSO AT NO.29, 11TH CROSS,
SOMESHWARANAGAR,
JAYANAGAR IST BLOCK,
BENGALURU-560011.
...APPELLANT
Digitally
signed by (BY SRI. UDAYA KUMAR R.L., ADVOCATE)
SUVARNA T
Location: AND:
HIGH
COURT OF
KARNATAKA 1. SRI THALIF PASHA
S/O MOHAMMED ALISAB,
AGED ABOUT 40 YEARS,
R/AT 1797, INDADIYA MOHALLA FORT,
KUNIGAL TOWN-572130
TUMKUR DISTRICT.
2. UNITED INDIA INSURANCE CO. LTD.,
KRISHI BHAVAN, 5TH FLOOR & 6TH FLOOR,
HUDUSON CIRCLE, NRUPATHUNGA ROAD,
-2-
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MFA No. 6681 of 2019
BENGALURU-560002
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(R1 SERVED AND UNREPRESENTED
SMT. HARINI SHIVANAND FOR R2, ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.11.2018 PASSED IN MVC
NO.5620/2017 ON THE FILE OF THE XIII ADDITIONAL JUDGE,
COURT OF SMALL CAUSES AND MEMBER OF MACT,
BENGALURU (SCCH-15), DISMISSING THE CLAIM PETITION
FOR COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant aggrieved by the
dismissal of claim petition in M.V.C.No.5620/2017, on the
file of the Motor Accident Claims Tribunal, Court of Small
Causes (SCCH-15) Bengaluru, dated 05.11.2018.
2. The claim petition was filed seeking
compensation of an amount of Rs.20,00,000/-, for the
injuries sustained by the claimant in the road accident. It
is the case of the claimant that on 05.04.2017 at about
10.30 am., he was proceeding as a pillion rider on the
motorcycle. The rider of the motorcycle has ridden the
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same in a rash and negligent manner and caused the
accident, due to which, the appellant fell down and
sustained injuries. In this regard, Cr.No.208/2017 was
registered. The claimant had taken treatment in various
hospitals and spent an amount of Rs.3,00,000/- towards
medical and other expenses. As on the date of the
accident, the claimant was aged about 43 years and was
working as ticket booking agent and earning an income of
Rs.20,000/- per month. Because of the injuries sustained
he was not able to attend the work and was suffering loss
of income.
3. The insurance company has filed their written
statement wherein they have stated that there is a delay
in giving the complaint and the vehicle is not involved in
the accident and the driver was not having a valid Driving
License.
4. The Court below by impugned order has
dismissed the claim petition, observing that the FIR has
been registered after four days of the accident. The
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complaint is given by one Ali Jan, who has nothing to do
with the claimant. The complaint is not given by the
claimant, as such he cannot even submit about the delay
that has caused in giving the complaint. Further, as per
the complaint, the said Ali Jan is a driver of another auto
rickshaw and is an eyewitness to the accident. As per the
very case of the claimant that Ali Jan has not accompanied
the claimant and his wife. The claimant had not taken
steps to examine the said auto driver, who is the
informant and basing on his information, the FIR was
registered.
5. The Court below has observed that the claimant
who was admitted in the hospital did not produce the MCL
extract and further Ex.P.4 wound certificate discloses that
the doctor of the Government hospital, Kunigal has
prepared the wound certificate on the basis of discharge
summary of Maharaja Agrasen Hospital and as per the
discharge summary of Maharaja Agrasen Hospital i.e., in
Ex.P.6 there is a history of fall causing fresh fracture neck
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of Rt. Femur with old fracture shaft and femur. The Court
below has further observed that what has been stated in
Ex.P.6 and the injuries that are sustained, have no
connection. Considering all these evidence, the Court
below has come to the conclusion that the motorcycle is
not involved in the accident and dismissed the petition.
6. Aggrieved thereby the claimant is before this
Court. Learned counsel for the claimant submits that the
case is registered against the rider of the motorcycle. It is
submitted that the FIR, charge sheet and all the police
records are in favour of the claimant. The insurance
company has not questioned the same. The Court below
having considered all these, on the ground of delay in
giving the complaint, has dismissed the case of the
claimant.
7. It is further submitted that in catena of cases,
this Court and the Hon'ble Apex Court have held that on
the ground of mere delay, a claimant cannot be non
suited. It is further submitted that the claimant is entitled
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for compensation as he has sustained the injuries because
of the negligence on the part of the rider of the motorcycle
which was insured by the insurance company.
8. Learned counsel appearing for the insurance
company submits that in this case, four days after the
accident, the complaint is given and that too by a person
who is nothing to do with the accident and then after
having admitted in the hospital, he has not placed the MLC
register. As per the wound certificate and discharge
summary-Ex.P.4 and 6, the injuries that are stated and
the surgery that was done, has no relevancy. The age that
is recorded in Ex.P.6 shows that the claimant has bone
disease called Avascular necrosis, which results in
temporary or permanent loss of blood supply to the bone
and when blood supply is cut off, the bone tissues dies and
the bone collapses. All these Ex.P.4, 6 and non-
examination of the driver supports the case of the
insurance company that the accident has not taken place
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and for the purpose of claiming the compensation the
vehicle has been implicated in this case.
9. Having heard the learned counsel on either side,
perused the material placed on record. The admitted facts
in this case are that four days from the date of accident,
the complaint has been registered. The complaint is given
by an auto driver, who is alleged to be an eyewitness,
basing on which the FIR is registered and the charge sheet
has been filed. The said person was not examined by the
claimant before the Court below. The appellant has not
given any complaint. So, as far as the delay is concerned,
the appellant cannot say any thing about the delay for the
reason that he has not given the complaint.
10. The petition is filed under section 166 of the
Motor Vehicles Act. The burden lies on the appellant to
prove that the vehicle is involved and the negligence was
on the part of the rider of the vehicle. In this case, except
relying on the FIR, the claimant has not placed any other
document. According to learned counsel for the claimant,
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respondents also have not placed any documents on
record. When the petition is filed by the claimant the initial
burden lies on him which he failed to discharge. When he
was evidently admitted in the hospital he could have filed
the copy of the MLC extract. As already discussed by the
Court in the perceiving paragraph about Ex.P.4 and 6 the
wound certificate reveals that the first injury was to the
neck and the surgery is hip replacement. What is the
connection between the two injuries is not known. All
these discrepancies supports the case of the insurance
company that there is no connection between the injuries
and the vehicle is not involved in the accident. In view of
the above discussions, the Court below has rightly
dismissed the claim petition. This Court finds no reason to
interfere with the same.
11. Accordingly, the appeal is dismissed.
SD/-
JUDGE
BN
