IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P. SANDESH M.F.A.NO.10877 OF 2012(MV) BETWEEN:
C. NAGARAJA S/O. LATE CHINNAPPA NOW AGED ABOUT 52 YEARS R/AT NO.1237, 6TH CROSS WEAVERS COLONY BANNERGHATTA ROAD BANGALORE-560 083. ..APPELLANT (BY SRI: D. MANMOHAN & K. VENKAT RAM, ADVS.) AND:
1. SRI. MARISIDDE GOWDA S/O. RAME GOWDA AGED MAJOR NO.44/45, PILLAGANAHALLI BANNERGHATTA ROAD BANGALORE-560098.
2. M/S UNITED INDIA INSURANCE CO. LTD., MICRO OFFICE CODE NO.071883 NO.1, 1ST FLOOR, 3RD CROSS 100 FEET RING ROAD (NEAR PESIT) HOSKEREHALLI BANGALORE-560 085.
REP. BY ITS MANAGER. ……RESPONDENTS (BY R1 SERVED BY SRI: RAVISH BENNI, ADV., FOR R2) THIS PETITION IS FILED UNDER 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 14.09.2012 PASSED IN MVC NO.2659/2011 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE, AND MEMBER, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS PETITION IS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
JUDGMENT This appeal is filed by the appellant/claimant challenging the judgment and award passed in MVC No.2659/2011 dismissing the claim petition vide judgment dated 14th September 2012.
2. Brief facts of the case are that on 03.01.2011 at about 12.10 p.m., when the appellant was walking near Ganapathy temple in Weavers' Colony, Bengaluru, the driver of the Maruthi van bearing registration No.KA-02-M- 4584 drove the same in rash and negligent manner and dashed against the appellant, due to which, he sustained injuries both simple as well as grievous. Hence, he filed claim petition. In response to the claim petition, respondent No.1 remained absent and respondent No.2 insurance company appeared through counsel and filed its written statement. In the written statement, it is contended that the vehicle is insured, however, it is contended that the vehicle is not involved in the accident. There is a delay of 26 days in lodging the complaint and IMV report and the hospital records would reveal that the appellant/claimant by colluding with the hospital authorities and police officers, converted the non MLC case as a Road Traffic Accident in order to make unlawful gain. Claimant in order to substantiate his contention, examined himself as PW-1 and got marked documents Ex-P1 to P20. Respondent No.2 Insurance company did not choose to examine any witness and marked documents Exs-R1 and R2. The tribunal after considering both oral and documentary evidence dismissed the claim petition and hence the present appeal is filed before this Court by the claimant.
3. The main ground urged in the appeal memo is that the finding of the tribunal is erroneous, arbitrary, and there is improper appreciation of cogent and documentary evidence. It is contended that PW-1 has explained with regard to the delay in not lodging the complaint immediately as he was under treatment in different hospitals and he was also taking treatment as outpatient at Hosmat Hospital, Bengaluru. The tribunal failed to consider the evidence of PW-2 who is the eyewitness to the incident and he shifted the injured to the hospital. The tribunal erred in not looking into Ex- P19- Order Sheet & Ex-P20 charge against the accused -driver and inspite of this material available before the Court, the tribunal did not consider both oral and documentary evidence which requires interference by this Court.
4. Learned counsel for the appellant/claimant in his argument vehemently contended that the MLC register extract which is marked as Ex-R1 discloses the vehicle involved in the accident is specifically mentioned as 'car' and not mentioning it as "Omni car' cannot be a ground to dismiss the claim petition. The other contention of the counsel appearing for the appellant/claimant is that the injured was walking on the road and a vehicle came behind and suddenly dashed against him and immediately he was shifted to Bowring and Lady Curzon Hospital and Rajiv Gandhi Institute of Chest Diseases, Bengaluru and he was inpatient in the hospital from 03.01.2011 to 5.01.2011 and as per medical advice, he was discharged from hospital and on the very day, he was admitted to St. Johns Hospital and he was inpatient from 5.1.2011 to 8.1.2011 at St. Johns Medical College Hospital, Bengaluru and thereafter he has taken treatment at Hosmat Hospital, Bengaluru. The S.D.S. Tuberculosis and Rajiv Gandhi Hospital Institute of Chest Diseases on the very same day informed the police and intimation in terms of Ex-P18 was given and subsequently, cognizance was taken against the accused in terms of Ex-P19. Ex-P20 shows that a charge has been framed against the accused and he pleaded guilty. All these documents are not considered by the tribunal and even the evidence of PW-2 who is an eyewitness is not considered by the tribunal.
5. Learned counsel appearing for the insurance company-respondent No.2 in his argument vehemently contended that the accident has taken place on 03.1.2011 and the complaint came to be filed on 29.1.2011 after 25 days. PW-2 in his evidence has stated that he gave the complaint at 5.00 p.m. on the very same day and the same is not produced before the Court. The police have also not registered any case on the complaint of PW-2. Hence, the evidence of PW-2 cannot be believed. As per Ex-R1, it is mentioned that the vehicle involved in the accident is 'car' and it is a hit and run case and Ex-R1 shows that the patient was referred from Bowring Hospital and no material is placed before the Court with regard to appellant having taken treatment at Bowring Hospital and also no information is given with regard to the involvement of this vehicle in the accident and the document Ex-R1 also does not help the claimant. The other contention that the injured was admitted to hospital from 3.1.2011 and discharged on 5.1.2011 and immediately after his discharge, he did not give any complaint and no-doubt he was also admitted to St. Johns Hospital on the very same day and discharged on 8.1.2011 and even after discharge from St. Johns Hospital also, he has not given any complaint. There is no explanation on the part of the appellant/claimant that FIR was registered only based on the second complaint of PW-2 and there is no material to connect the vehicle that the same is involved in the accident. The claimant fails to substantiate his case that the vehicle is involved in the accident and merely the accused pleading guilty in terms of Ex-P20, the same cannot be a ground to fasten the liability on the insurance company that the vehicle is involved in the accident. The evidence of PW-1 and PW- 2 has to be read together and the evidence of these two witnesses does not inspire confidence of this Court to hold the vehicle(Maruthi van) is involved in the accident. PW-2 in his evidence has stated that he and one Ravi accompanied the injured to the hospital and there is reference to the medical records of the hospital that PW-2 who is an eyewitness shifted the claimant- injured to the hospital and hence the tribunal below has rightly appreciated the material available on record and there are no grounds to interfere with the judgment of the tribunal.
6. Having heard the argument of both the appellant/claimant's counsel and also counsel appearing on behalf of the insurance company and in keeping open the rival contentions of both the parties, the points that arise for consideration of this Court is:-
"1. Whether the court below has committed an error in dismissing the claim petition and whether it requires interference of this Court?
2. What Order?
Point No.1:-
7. In keeping the contentions of both the counsels, the main contention of the claimant's counsel is that immediately after the accident, intimation was given to the concerned police from S.D.S. Tuberculosis and Rajiv Gandhi Institute of Chest Diseases, Bengaluru in terms of Ex-P18. MLC Register Ex-R1 discloses that the vehicle ‘car’ is involved in the accident. No-doubt, on perusal of Ex-R1 the accident was caused by vehicle 'car', but, on perusal of Ex-P18, it is seen that intimation was given that the patient was admitted to the hospital in connection with RTA. On perusal of Ex- P18, it is seen that no details and description of the vehicle is given immediately to the concerned police station. It is also important to note that complaint was given on 29.1.2011 in terms of Ex-P1. No complaint was given to the police with regard to the accident immediately after the accident. Though PW-2 claimed that he witnessed the accident and immediately, he took the injured alongwith one Ravi to the hospital and he gave complaint at 5.00 p.m. on 03.01.2011, no such complaint is produced before the Court. It is also important to note that the medical records does not disclose anything about PW-2 witnessing the accident and that he took the appellant/injured to the hospital and on perusal of Ex-R1, it is mentioned in column 9 that one Lokesh N, who is son of the injured accompanied him to the hospital. In order to substantiate, the evidence of PW-2, there is no material before the Court though he claims that he gave the complaint on the very same day, no such complaint is produced before the Court. Apart from that, on perusal of the evidence of PW-1, he has also deposed before the Court that he came to know about the involvement of the vehicle in the accident through his wife and one Chandrashekar has informed about the accident to his wife. Said Chandrashekar who has been examined as PW-2 before the Court though claims that he witnessed the accident and gave the complaint, he has not given any complaint to the police and as I have already pointed out, the medical records does not disclose the name of PW-2 and hence the evidence of PW-2 that he witnessed the accident also cannot be accepted. The records reveals that the appellant/claimant was discharged from S.D.S. TB & Rajiv Gandhi Institute of Chest Diseases, Bengaluru on 05.1.2011 itself and on that day, he has not given any complaint and no-doubt on the very same day, he was shifted to St. Johns Hospital and he was inpatient in the said hospital from 05.01.2011 to 08.01.2011 and he was discharged on 08.01.2011, immediately after discharge, the appellant/claimant has not given any complaint. There is no explanation before the Court as to why the claimant kept quiet after his discharge from hospital on 08.01.2011 to lodge a complaint nor to connect the vehicle involved in the accident. First of all, there is no reference in Ex-P18 with regard to the involvement of the vehicle in the RTA before this Court and also in the evidence of PW-1 states that the owner has stated before the police about the rash and negligent driving of vehicle after 20 days of accident. The version of PW-1 that owner himself came forward and informed the police voluntarily that he caused the accident appears to be doubtful. The documents Exs-P19 and 20 no-doubt discloses that owner admitted the guilt and paid fine and merely because he went and admitted the guilt and made payment, that itself is not enough to come to the conclusion that this vehicle is involved in the accident. The very conduct of the owner as well as evidence of PW-1 and also PW-2 does not inspire the confidence of the Court that very vehicle is involved in the accident nor there is cogent evidence in order to come to a conclusion before the tribunal that this vehicle only is involved in the accident. While considering issue No.1, the tribunal discussed in detail with regard to the material on record and gave a finding that there is no material to accept the case of the claimant that the vehicle involved in the accident. Hence, there is no ground to reverse the finding of the tribunal to come to the conclusion that this vehicle has caused the accident.
Under the circumstances, I do not find any merit in the appeal.
8. In view of the above discussion, I pass the following order:-
Appeal is dismissed.
Sd/- JUDGE *mn/-