Karnataka High Court
Sayed Abdullah vs Suban And Anr on 6 February, 2025
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NC: 2025:KHC-K:893
MFA No. 200224 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.200224 OF 2018 (MV-I)
BETWEEN:
SAYED ABDULLAH S/O SAYED ABDUL BASIT,
AGE: 14 YEARS MINOR, OCC: NIL MINOR,
THROUGH HIS NEXT FRIEND, NATURAL FATHER
SYED ABDUL BASIT S/O SYED ABDUL VAJID,
AGE: MAJOR, OCC: BUSINESS,
R/O: HUMNABAD, DIST. BIDAR-585 101.
...APPELLANT
(BY SRI. BABU H. METAGUDDA, ADVOCATE)
AND:
1. SUBAN S/O MALLESAB,
Digitally
AGE: 42 YEARS, OCC: BUSINESS
signed by
LUCYGRACE
LUCYGRACE Date:
R/O: ZORPETH HUMNABAD,
2025.02.11
11:13:34 -
0800
TQ: HUMNABAD, DIST. BIDAR-584 101.
2. THE MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
ITS MICRO OFFICE NIRNA COMPLEX,
OPP. APMC YARDSTICK HUMNABAD,
TQ. HUMNABAD, DIST. BIDAR-584 101.
...RESPONDENTS
(BY SRI. SHIVANAND PATIL, ADV. FOR R2;
NOTICE TO R1-SERVED, BUT UN-REPRESENTED)
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MFA No. 200224 of 2018
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
SET ASIDE THE JUDGMENT AND AWARD DATED 27.02.2017
PASSED IN M.V.C.NO.201/2011 BY THE MOTOR VEHICLE
ACCIDENT CLAIMS TRIBUNAL AT-HUMNABAD. AND AWARD
THE COMPENSATION OF Rs.9,50,000/- WITH 12% INTEREST
AND ETC.,
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Being aggrieved by the judgment and award in
MVC.No.201/2011 dated 27.02.2017 by the learned MACT,
Humnabad, the petitioner who is a minor is before this
Court in appeal, through his guardian.
02. Heard the learned counsel for the appellants
and the respondent No.2.
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03. The petitioner contends that on 11.03.2010
when he was returning from the school, near Noor Khan
Akhada, an auto-rickshaw bearing Reg.No.KA-39-4920
came from his hind side and dashed to the minor
petitioner, causing injuries. The driver did not stop the
same after the accident. The minor petitioner was
admitted to the Aditya Hospital, Hyderabad, where he was
inpatient for several days. The petitioner claims that the
minor petitioner was 07 years at the time of accident and
has sustained severe disablement and as such he is
entitled for compensation.
04. On issuance of notice, the respondent No.1
insured did not appear, the respondent No.2 - insurer
appeared and resisted the petition. It contended that the
contentions of the petitioner were wrong, concocted and
misleading. There were violations of the terms and
conditions of the policy. It was also contended that the
compensation claimed is highly exorbitant, imaginary and
untenable in law. It was specifically contended that the
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there was no such accident, which had taken place due to
the negligence of the driver of the auto-rickshaw bearing
No.KA-39-4920 and it is the cooked up story only to claim
compensation, colluding with the police officials. It was
contended that there is delay of 09 days in filing the
complaint and such delay has not been explained by the
petitioner. The accident itself was vehemently denied by
the respondent No.2.
05. On the basis of the above contentions, the
Tribunal framed the following issues.
1. Whether the petitioner proves that, he has sustained
grievous injuries in the motor vehicle accident
occurred on 11.03.2010 near Sardar Vallabhai Chow,
Noor Khan Akhada, on account of rash and negligent
driving of the driver of Auto Rickshaw vehicle No.KA-
39-4920.?
2. Whether the petitioner further proves that he is
entitled for compensation.? If so what is the
quantum and from whom.?
3. What order or award.?
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06. The guardian of the petitioner, who is none else
than natural father of the minor petitioner was examined
as PW.1 and the doctor who assessed disability was
examined as PW.2, Ex.P.1 to 32 were marked in the
evidence. The official of the insurance company was
examined as RW.1.
07. After hearing the arguments, the Tribunal
answered issued No.1 and 2 in the negative and dismissed
the petition. The Tribunal reasoned that the delay in filing
the complaint by PW.1 is not properly explained and
opined that there is no nexus between the injury and the
accident.; therefore, the petitioner is not entitled for any
compensation. The said finding is assailed in the present
appeal.
08. The learned counsel appearing for the petitioner
/ appellant submits that it is not the case of the insurance
company that there is collusion between the minor
petitioner and the respondent No.1. The only reason
assigned by the Tribunal for non-suiting the minor
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petitioner is delay in filing the complaint by PW.1. There
being no other circumstances, which would show that it is
a fake accident, the Tribunal should have believed the FIR,
charge-sheet and the fact that the driver of the auto-
rickshaw had pleaded guilty. Therefore, he contends that
the impugned judgment is not sustainable in law.
09. Per contra, the learned counsel appearing for
the respondent No.2 - insurance company would submit
that the burden is on the petitioner to prove that the
minor petitioner had sustained the injuries in the road
traffic accident dated 11.03.2010 involving the vehicle
owned by respondent No.1. This aspect has not been
established by the petitioner. Therefore, no fault can be
found in the impugned judgment. He supports the
reasoning of the Tribunal, in dismissing the petition.
10. The written statement of the respondent No.2 -
insurance company contends that the accident had
occurred on 11.03.2010, but FIR was registered on
20.03.2010 and delay was not explained. It is
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pertinent note that the collusion of the minor petitioner
and the respondent No.1 is not alleged in the written
statement.
11. The PW.1 in his testimony states that soon after
the accident the auto-rickshaw driver sped away from the
spot. Since the minor petitioner had sustained injury, he
was admitted to Aditya Hospital, Hyderbad and was
discharged on 14.03.2010. In the cross-examination it was
elicited that though the petitioner was discharged on
14.03.2010, for about 10 days he was out patient. It was
elicited that Aditya Hospital, had admitted the minor
petitioner by noting the MLC case. He admits that he did
not inform the accident to the police for about 09 days,
but he had informed through his friend.
12. The perusal of the FIR, discloses that the PW.1
lodged the complaint on 20.03.2010 and he had
mentioned that he and one Khalid Shakil had seen the
accident and immediately the petitioner was shifted to
Aditya Hospital, Hyderbad. It is stated that he later came
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to know the name of the auto-rickshaw driver as Tajuddin.
Conspicuously, the number of the vehicle is also
mentioned as KA-39-4920.
13. On the basis of such information, case was
registered in Crime No.94/2010 and investigation was
launched. After completion of the investigation, a charge-
sheet was laid as per Ex.P.3. Obviously, the investigating
officer, conducted the investigation and having ascertained
about the accident, filed the charge-sheet.
14. The MVA report at Ex.P.5 would show that the
auto-rickshaw had a slight dent on the front left side. The
Ex.P.6 - injury certificate issued by Aditya Hospital,
Hyderabad shows that it was received by the I.O. on
18.05.2010 and mentioned MLC Number as 1533. The
petitioner had sustained displaced spiral fracture of right
femur at middle 1/3rd.
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15. The affidavit evidence of RW.1 shows that the
official of the respondent No.2 denied the accident and
alleged that it is a cooked up story. He reiterated the delay
in filing the complaint as the only reason to conclude that
it is a cooked up story. Neither any document was
produced nor was any witness examined on behalf of the
respondent No.2. It is worth to note that the copy of the
policy is found in the Trial Court records, but it was not
marked either by the petitioner or by the respondent No.1.
16. From the perusal of the evidence on record, it is
to be noted that the PW.1 has explained the delay of 09
days in filing the complaint. He says that he had been to
Hyderabad for the treatment of the petitioner at Aditya
Hospital. He states that he was at Hyderabad, subsequent
to the discharge also. He says that Hospital has registered
the case as Medico Legal Case. However, it is not known
as to whether the Hospital had issued any intimation to
the police. When the petitioner has adduced evidence in
the form of the testimony of the PW.1 and the charge-
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sheet, the onus to rebut the evidence placed on record,
was on the respondent No.2. The respondent No.2, has
not made any efforts to summon the MLC register of the
hospital, case sheet of the hospital or to summon the I.O.
to say whether any MLC intimation was received by him. It
was incumbent upon the respondent No.2, to rebut such
evidence of PW.1 and the charge-sheet to establish that
the petitioner had sustained the injury, somewhere else. It
being not the case of the respondent No,2, either in the
pleadings or in the testimony of RW.1 that the petitioner,
the respondent No.1 and the police had colluded to make
unlawful gain, it could have succeeded only if the charge-
sheet is shown to be prima-facie illegal and incorrect.
Therefore, it is evident that the Tribunal erred in
concluding that there was no such accident.
17. On behalf of respondent No.2 - insurance
company no other circumstances which render the charge-
sheet and the FIR unbelievable are pointed out. Therefore,
when the evidence of PW.1, coupled with the FIR and the
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charge-sheet is not effectively rebutted by the testimony
of the RW.1 and when the policy cover is admitted, the
Tribunal has erred in holding that there was no such
accident. The delay in FIR alone could not have been the
reason to deny the claim of the petitioner.
18. It is pertinent to note that there being an issue
regarding the quantum of the compensation, the Tribunal
has not dealt with the same. When there is evidence and
an issue about the quantum, it should have determined
the same. If it was the contention of the respondent No.1
that there was collusion between the petitioner and the
respondent No.1, in admitting the accident involving the
auto-rickshaw owned by respondent No.1, then the liability
could have been fastened upon the respondent No.1.
Therefore, there being no such contention of the collusion,
the Tribunal dismissed the petition, which is not
sustainable in law.
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19. In the circumstances, the finding of the Tribunal
that there was no such accident, involving the auto-
rickshaw bearing Reg.No.KA-39-4920 deserves to be set-
aside. The matter has to be remanded to the Tribunal to
assess the compensation and fasten the liability on the
respondent No.2, if there is insurance cover or otherwise
hold the respondent No.1 liable to pay the compensation.
Hence, the following;
ORDER
I. The appeal is allowed.
II. The matter is remanded to the Tribunal with a
direction to assess the compensation payable to the
minor petitioner and dispose off the petition as per
law.
III. Both the parties are hereby directed to appear before
the Tribunal on 06.03.2025.
The office is directed to send back the records of the
Tribunal along with copy of this judgment forthwith.
Sd/-
(C M JOSHI)
JUDGE
KJJ
CT: AK
