The Divisional Manager vs Manjunath S/O Tukaram Baremmappanavar
2025 Latest Caselaw 4877 Kant

Karnataka High Court

The Divisional Manager vs Manjunath S/O Tukaram Baremmappanavar on 10 March, 2025

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                                                              NC: 2025:KHC-D:4550
                                                           MFA No. 24045 of 2012




                              IN THE HIGH COURT OF KARNATAKA,
                                      DHARWAD BENCH

                          DATED THIS THE 10TH DAY OF MARCH, 2025

                                              BEFORE
                           THE HON'BLE MR. JUSTICE UMESH M ADIGA

                    MISCELLANEOUS FIRST APPEAL NO. 24045 OF 2012 (MV-I)



                   BETWEEN:

                   THE DIVISIONAL MANAGER,
                   NATIONAL INSURANCE CO. LTD., REP. BY THE ASSISTANT
                   MANAGER, NATIONAL INSURANCE CO. LTD.,
                   REGIONAL OFFICE, KUSUGAL ROAD, HUBLI.
                                                                    ...APPELLANT
                   (BY SRI. S. C. BHUTI, ADVOCATE)

                   AND:

                   1.   MANJUNATH S/O. TUKARAM BAREMMAPPANAVAR,
                        AGE 25 YEARS, OCC: AGRICULTURE & BUSINESS,
                        R/O. R. K. PATIL BUILDING, IIND MAIN, IST CROSS,
                        DESHPANDENAGAR, HUBLI-29.
Digitally signed
by VISHAL          2.  IMAM-HUSSAIN S/O. GOUSUSAB FANIBAND,
NINGAPPA
PATTIHAL               AGE 48 YEARS, OCC: OWNER OF M/C,NO.KA-25/A-1772,
Location: High         R/O. GANDHI NAGAR, KALAGHTAGI, DIST: DHARWAD.
Court of
Karnataka,                                                      ...RESPONDENTS
Dharwad Bench
                   (BY MISS. POOJA BAGADE, AS AMICUS CURIAE TO REPRESENT
                             ON BEHALF OF RESPONDENTS)

                        THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC. 173(1)
                   OF MV ACT, 1988, PRAYING TO CALL FOR THE RECORDS, AND SET
                   ASIDE THE JUDGMENT AND AWARD DT. 15.06.2011 PASSED IN MVC
                   NO.935/2009 BY THE FAST TRACT COURT-II, DHARWAD, SITTING AT
                   HUBLI BY ALLOWING THE INSTANT APPEAL, WITH COSTS, IN THE
                   INTEREST OF JUSTICE AND EQUITY.

                        THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                   JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                               NC: 2025:KHC-D:4550
                                             MFA No. 24045 of 2012




                       ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

This is an insurer's appeal against the judgment and

decree dated 15.06.2011 passed in MVC.No.935/2009 by Fast

Track Court-II, Dharwad.

2. The appellant is respondent No.2 before the trial

Court and respondent No.1 is the claimant and respondent No.2

is the owner of the offending vehicle.

3. It is the contention of the claimant in the petition

that on 11.05.2009, the petitioner and his friend Soudagar

were going by walk at extreme left side of Kalaghtagi, Dharwad

road, to go to Shigigatti village and they met with an accident

at Tumarikoppa cross, around 8.30 p.m, due to rash and

negligent driving of the vehicle bearing registration

No.KA.25/EB-4912 by its rider, as a result of which, the

claimant sustained fracture of right patella and fracture of

upper end of tibia. Initially he had taken treatment in primary

health Centre, Kalaghtagi and for higher treatment he went to

KIMS hospital. He got admitted as in patient from 11.05.2009

till 19.06.2009. He underwent surgery and also took follow up

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treatment. With these reasons, he prayed to award

compensation of Rs.17,50,000/-.

4. Respondent No.2 filed written statement denying

the contentions of the claimant and also denied the facts of the

accident.

5. From the rival contentions, the Tribunal framed the

necessary issues:

1. Whether petitioner proves that on 11.5.2009, when he along with his friend Soudagar were walking, when they were at Tumarikoppa cross on Kalaghatigi-Dharwad road, one Motor-Cycle bearing No.KA.25/EB-4912 riden by its rider in rash and negligent manner came and dashed to petitioner and his friend, so, accident occurred, and petitioner sustained severe injury?

2. Whether petitioner proves that offended motor cycle was insured with R2 Co. on the date of accident?

3. Whether R2 proves that the rider of the motor cycle was not holding valid D.L. as on the date of accident?

4. Whether petitioner is entitled for compensation?

If so, at what rate and from whom?

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5. What order or Award?

6. The claimant to prove his case examined himself as

PW-1 and got marked 59 documents as per Exs.P1-P59. The

respondents have not lead oral evidence, however, got marked

policy of insurance at Ex.R1. After hearing both the parties,

the Tribunal partly allowed the petition and awarded

compensation of Rs.50,000/- and also directed respondent No.2

to pay compensation with interest, by impugned judgment and

award dated 15.06.2011.

7. Being aggrieved by the same, the insurer preferred

this appeal.

8. I have heard the arguments of insurer as well as

the claimant. The claimant is unrepresented. Therefore,

Ms. Pooja Bagade, learned Amicus Curiae has been appointed

to represent the claimant.

9. Learned counsel for insurer - appellant vehemently

contended in the pleading as well as in the evidence that

accident had taken place on 11.05.2009. However, Ex.P6 and

unmarked discharge summary shows that accident had taken

place on 06.05.2009 and he was admitted in KIMS hospital on

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that day. The claimant relies on Ex.P6. The said document

denies the contention of the petitioner that accident had taken

place on 11.05.2009. The said fact clearly indicates that the

said vehicle was falsely implicated by the claimant to claim

compensation. The accident had not taken place as stated by

the claimant and hence prayed to allow the appeal by setting

aside the impugned judgment.

10. Learned Amicus Curiae appointed by the Court

vehemently contends that the insurer has not taken this

contention before the Tribunal. The accident had taken place

on 11.05.2009, which is stated in the prosecution papers. Date

of accident stated in Ex.P6 might be incorrect. It might be due

to mistake of the doctor in mentioning wrong date in the

certificate as 06.05.2009 instead of 11.05.2009. On the basis

of the said mistake of the doctor, it cannot be held that the said

vehicle was falsely implicated and no accident had taken place

on 11.05.2009. The Tribunal has considered the materials

available on record and rightly granted the relief. There is no

infirmity in the said findings and prays to dismiss the said

appeal.

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11. The main question arises for determination is:

i. Whether the clamant is able to prove the

accident had taken place on 11.05.2009 by the

offending vehicle?

My finding to the above question is in the 'Negative' for

the following reasons.

12. As rightly submitted by learned counsel for the

appellant, pleadings, evidence of PW-1, charge sheet and its

enclosures excluding Ex.P6, shows that accident had taken

place on 11.05.2009. However, Ex.P6 was got marked in the

evidence of PW-1. It is wound certificate and it was obtained

by the police inspector and it was enclosed along with charge

sheet. The document shows that claimant visited Primary

Health Centre, Kalaghtagi on 06.05.2009 around 8.30 p.m. He

visited the hospital at 10.00 pm and he was examined by

Senior Specialist Kalaghtagi at 10.05 p.m and he was X-Rayed

on 06.05.2009 with X-ray No.3100. On the basis of the x-ray,

it was found that he had sustained "fracture of right supra

cardylac femur with right femur lateral tibial condyle and

fracture of patella." The claimant has produced photo copy

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of patient discharge card given by KIMS Hospital. It appears

that it was photo copy and it was not marked but said

document also reveals that accident had taken place on

06.05.2009 and he was admitted to the hospital on 06.05.2009

and was discharged on 19.06.2009.

13. The claimant did not explain the inconsistency in

the date of accident and his admission to hospital prior to the

date of accident. He did not examine the doctor, who issued

Ex.P6 to clarify the same. Ex.P6 indicates that accident had

taken place on 06.05.2009 and he sustained injury. As per

Charge-sheet claimant met with an accident on 11.05.2009.

Both the facts do not align. Therefore, the claimants utterly

failed to prove and establish that he sustained injury in motor

vehicle accident that had taken place on 11.05.2009.

14. The Tribunal did not consider these facts i.e.

inconsistency in the date of accident as stated in Ex.P6 and

date of accident mentioned in pleadings and evidence of PW-1.

The said inconsistency creates serious doubt in the contention

of the claimant that was not taken note by the Tribunal. It also

appears that the appellant did not bring the said fact to the

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notice of Tribunal. Therefore, there was no reference on the

said inconsistency of the date of accident and the date of

wound certificate, the claimant suffered injury before accident

indicates that, it is not genuine case, produced before the

Tribunal. In view of these reasons, I answer the above said

question in the 'Negative' and proceed to pass the following:

ORDER

i. The appeal is allowed.

ii. The impugned judgment and award dated

15.06.2011 passed in MVC.No.935/2009 by the Fast Track Court-II, Dharwad, sitting at Hubballi is set aside.

iii. The claim petition is dismissed.

If any amount is deposited by the appellant - insurer,

same shall be refunded in its favour on due identification.

Registry is directed to send back the records to the

Tribunal.