IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2311/2013 (MV) BETWEEN :
SMT.B.A.ROJA D/O SRI ANANTHARAMAIAH, AGED ABOUT 24 YEARS, R/AT NO.18, VENKATALA, YELAHANKA, BANGALORE. ...APPELLANT (BY SRI K.V.SHYAMAPRASADA, ADV.) AND :
1. M/s ICICI LOMBARD GEN. INSURANCE CO. LTD., ICICI BANK TOWRS, BANDRA-KURLA COMPLEX, MUMBAI-400051, REP BY ITS MANAGER.
2. CHANDRASHEKAR ACHARYA S/O NANJUNDA ACHARYA, MAJOR, NO.80/A, SHIVAPPA NAYAK ROAD, WEAVERS COLONY, SRINAGAR PIPELINE BANGALORE …RESPONDENTS (BY SRI A.N.KRISHNASWAMY, ADV. FOR R-1; R-2 NOTICE NOT ORDERED.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 13.08.2012 PASSED IN MVC NO.6661/2007 ON THE FILE OF THE X ADDITIONAL JUDGE, MEMBER, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant being claimant is before this Court in this appeal, aggrieved by the dismissal of the claim petition under the judgment and awarded dated 13.08.2012 in MVC No.6661/2007 on the file of MACT, Bengaluru.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained in a road traffic accident which occurred on 26.05.2007. It is the case of the claimant that on 26.05.2007, while she was crossing the road in front of Anjaneya Swamy Temple near M.G.Road, Chikkaballapur, a two wheeler bearing registration No.KA-04/EC-8913 ridden in a rash and negligent manner, came and dashed against the claimant causing grievous injuries. It is stated that the claimant initially took treatment at Balakrishna Private Hospital and later on at CSI hospital at Chikkaballapur and has spent huge sum of Rs.1,00,000/- towards her treatment.
3. In response to the notice issued by the Tribunal, the first respondent/insurance company filed its written statement denying the petition averments. Further it was stated that the accident occurred only due to negligence on the part of the claimant and that the rider of the motorcycle had no valid and effective driving licence. However, the insurance company admits issuance of the policy in respect of the offending vehicle.
4. The tribunal, based on the pleadings of the parties, framed the following issues:
1. Whether the petitioner proves that on 26.05.2007 at about 7.30 a.m., in front of Anjaneya Swamy Temple, M.G.Road, Chikkaballapur, the road accident took place due to actionable negligence by the rider of the Motorcycle bearing registration No.KA-04/EC-8913, by which the petitioner sustained injuries?
2. Whether the petitioner proves that she is entitled for compensation? If so, how much and from whom?
3. What order or award?
5. In support of her claim, the claimant got examined herself as P.W.1 and got marked the documents as Ex.P1 to Ex.P8. The respondent/insurance company examined the doctor as R.W.1 and got marked the document as Ex.R1.
6. The Tribunal, on assessing the material on record answered both the issues in the negative. Thus dismissed the claim petition holding that the claimant has not proved the accident. Being aggrieved by the judgment and award, the claimant is before this court, in this appeal.
7. Heard the learned counsel for the appellant and learned counsel for respondent No.1/insurance company. Perused the appeal papers including the lower court records.
8. Learned counsel for the appellant/claimant would submit that the Tribunal is not justified in dismissing the claim petition on the ground that the alleged accident is not found in the MLC register and there is delay in lodging the police complaint. Learned counsel for the appellant would invite attention of this Court to the wound certificate and discharge summary Ex.P6 and Ex.P7, which would indicate that the claimant took treatment from 26.05.2007 to 01.06.2007. He submits that the accident took place on 26.05.2007 whereas the complaint and FIR were registered on 30.05.2007. As the claimant had suffered injuries, she was not in a position to lodge the complaint immediately. Further, he states that respondent No.2 who is the rider of the offending motorcycle failed to settle as promised by him, which made the claimant to lodge a complaint on 30.05.2007.
Learned counsel also invites the attention of this Court to the deposition of R.W.1-doctor from CSI Hospital and also cross- examination portion of P.W.1. It is not the case of the respondent/insurance company that the accident had not taken place and there is not even a suggestion that the injuries suffered by the claimant are not the injuries suffered in a road traffic accident. On the other hand, the insurance company in its cross-examination has proceeded on the basis that the claimant has suffered accidental injuries, but she is not entitled for quantum of compensation as claimed by her.
9. Per contra, learned counsel for the insurance company submits that the accident is not recorded in the MLC register which is clear from the evidence of R.W.1. He further contends that Ex.P6 and Ex.P7 wound certificate and discharge summary would also not suggest that the claimant has suffered accidental injuries. There is no mention of accidental injuries in any of the hospital records. He further submits that there is delay in lodging the complaint and registering FIR. Therefore, he submits that the claimant has not suffered injuries in the alleged road traffic accident.
10. After hearing the learned counsel for the parties and on perusal of the records, in the facts and circumstances of the case, the only question which arises for consideration in this appeal is whether the Tribunal was justified in rejecting the claim petition. Answer to the said question is in favour of the claimant.
11. On 26.05.2007 at about 7.30 a.m., while the claimant was walking in front of Anjaneya Swmay temple, M.G. Road, Chikkaballapur, a two wheeler bearing registration No. KA-04/EC-8913 came in a rash and negligent manner and dashed against the claimant causing grievous injuries. The claimant states that initially she took treatment at Balakrishna private hospital and thereafter shifted to CSI hospital, Chikkaballapur. To prove the treatment taken by her in CSI Hospital, the claimant has produced Ex.P6-Wound certificate and Ex.P7-discharge summary which would indicate that the claimant has suffered following injuries 1.Fracture M/3rd (Left) Tibia undisplaced with out N.V.Deficit;
2. Abrasion on medial side of great toe (Left);
3. Abrasion over dorsum of (Left) forearm; and 4.Blunt injury with contusion on (Left) Parieto occipital region.
Ex.P6 and Ex.P7 would also indicate that the claimant was admitted in the hospital on 26.05.2007 and was discharged on 01.06.2007. It is an admitted fact that the accident was not registered in the MLC register and it is also admitted fact that even though the accident had taken place on 26.05.2007, the complaint was lodged and FIR was registered only on 30.05.2007. Mere delay in filing the complaint or registering FIR would not be fatal to the claim petition. In fact, on perusal of the documents on record, there is no delay on the part of the claimant in lodging the complaint and registering the FIR, as she had suffered injuries in the accident that took place on 26.05.2007, before she got discharged from the hospital, she has lodged a complaint and registered the FIR. The claimant was discharged on 01.06.2007. The explanation offered by the claimant is that respondent No.2 had assured to settle the matter. Since he failed to settle the matter, she filed the complaint on 30.05.2007 which is the probable explanation which could be accepted. Merely on the ground that the accident is not found in the MLC register, the Tribunal could not have dismissed the claim petition. In the peculiar facts and circumstances of the present case, on going through the records, i.e. Ex.P1-FIR, Ex.P2-charge sheet which is filed against the rider of the vehicle, I am of the view that the claimant is to be provided one more opportunity to prove the accident.
12. Both the appellant and respondent/insurance company are at liberty to adduce any further evidence and the Tribunal shall examine the available record and records that would be produced and then answer issue No.1. Thereafter quantify the compensation which the claimant would be entitled to.
13. For the reasons stated above, the appeal is allowed.
The impugned judgment and award dated 13.08.2012 passed in MVC No.6661/2007 on the file of the Motor Accident Claims Tribunal, Bengaluru is set aside and the matter is remanded to the Tribunal for fresh disposal in accordance with law, with liberty to both the parties to adduce additional evidence.
Sri.A.N.Krishnaswamy, learned counsel is granted two weeks time to file vakalath for Respondent No.1/insurance company.
Sd/- JUDGE mpk/-*CT:bms