IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4697 OF 2013 (MV) BETWEEN Shanthamma, W/o Rudrappa, Aged about 62 years, House hold work, R/o Devapura Village, Hosadurga Taluk. ... Appellant (By Sri. C. Rangajja, Advocate for Sri. R. Shashidhara, Advocate) AND 1. Danappa K, S/o Kariyappa T, Age Major, # L.I.C. Agent, Bhagiratha Nilaya, Main Road, Mathodu Village and Post, Hosadurga Taluk, Owner of the Byke Bearing No.KA-16/U-0991.
2. The General Manager Universal Sompu General Insurance Co., Ltd., Crystal Plaza, Opp: Infantry Mall, Link Road, Andheri (West), Mumbai-400 058. ... Respondents (By Sri. S. N. Bhat, Advocate for R1; Sri Ravi S. Samprathi, Advocate for R2) This MFA is filed under Section 173(1) of M.V.Act against the judgment and award dated 18.01.2013 passed in MVC.No.202/2011 on the file of the Senior Civil Judge and Additional MACT, Hosadurga, dismissing the claim petition for compensation.
This MFA is coming on for Admission, this day, the court made the following:
J U D G M E N T The claimant is in appeal under Section 173 (1) of Motor Vehicles Act, being aggrieved by dismissal of the claim petition under the judgment and award dated 18.01.2013 in M.V.C. No.202/2011 on the file of the Itinerary Senior Civil Judge and Additional MACT, Hosadurga.
2. The claim petition was filed under Section 166 of the Motor Vehicle Act, claiming compensation for the injuries sustained by the claimant in motor vehicle accident occurred on 20.11.2010.
3. It is stated that on 20.11.2010, the claimant was walking from her garden land to her house, when she came near Government Higher Primary School, Devapura Village, Hosadurga Taluk, Motorcycle bearing Reg.No.KA- 16-U-0991 came in a rash and negligent manner and dashed to the claimant. Due to which, she sustained injuries and fractured wounds all over the body. Thereafter, she was shifted to Government Hospital, Hosadurga, where she took treatment as inpatient.
4. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal. But only respondent No.2 filed its objections denying the claim petition averments contending that the accident occurred due to negligence of the claimant herself. It is also contended that the rider of the motorcycle had no valid and effective driving license as on the date of accident.
5. Based on the pleadings, the following issues were framed.
1) Whether petitioner proves that she sustained injuries in R.T.A on 20.11.2010 at about 6 p.m. infront of Govt.Higher Primary School, Devapura, Hosadurga Taluk, due to rash and negligent manner of riding Motor Cycle bearing its Reg.No.KA-16/U-0991 by its driver?
2) Whether petitioner is entitle for compensation, if so, how much and from whom?
3) What order or award?
The Tribunal, answered the first issue in the negative and dismissed the claim petition.
6. The claimant examined herself as PW.1 and examined PW.2, apart from marking the documents at Exs.P.1 to P.14. Respondent No.2 - Insurer marked Ex.R.1.
7. The Tribunal on appreciating the material placed on record, was of the view that the claimant failed to prove the road traffic accident alleged to have occurred on 20.11.2010 involving motorcycle bearing Reg.No.KA-16-U- 0991. Aggrieved by dismissal of the claim petition, the claimant is before this Court in this appeal.
8. Heard the learned counsels for the appellant and learned counsel for the respondent - Insurer. Perused the material on record.
9. Learned counsel for the appellant would submit that the Tribunal committed an error in dismissing the claim petition only on the ground that there is four days delay in lodging the complaint. Further, learned counsel submits that the claimant had explained the delay in lodging the complaint stating that no person was along with her to lodged the complaint and due to injuries she could not move around. He further submits that the Tribunal failed to look in to the material placed on record i.e., evidence of PWs.1 and 2 and Exs.P.1 to P.14 which would establish that the claimant suffered accidental injuries on account of accident occurred on 20.11.2010 involving motor cycle bearing Reg.No.KA-16-U-0991.
10. Per contra, learned counsel for the respondent - Insurer would submit that even though accident occurred on 20.11.2010, the claimant had not lodged the complaint till 24.11.2010 and there is delay of four days which is not explained properly. He further submits that Ex.P.12 - MLC Register Extract would indicate that even though the accident had taken place on 20.11.2010, the claimant went to Hospital on 24.11.2010. It is stated by the claimant that she has suffered injuries of fracture of left knee, Tibia and Fibula, when such are injuries, the claimant would not have kept quite for four long days without taking the treatment. Learned counsel also invites attention to Ex.P.5 - Wound Certificate which disclosed that for the first time, the claimant went to hospital on 24.11.2010 at 1.30 p.m., even though, the accident occurred on 20.11.2010. Therefore, there is contradiction in the evidence and materials placed on record. Further, he submits that the Tribunal rightly rejected the claim petition which needs no interference.
11. Having heard the learned counsel for the parties and on perusal of the material on record, the only point which arises for consideration is as to whether the Tribunal is justified in dismissing the claim petition filed under Section 166 of the Motor Vehicles Act. Answer to the said point would be in the affirmative for the following reasons.
12. The alleged accident is said to have occurred on 20.11.2010. Admittedly, the claimant lodged the complaint on 24.11.2010 and the FIR was registered on the same day i.e., on 24.11.2010. The claimant states that she sustained injuries i.e., fracture of Tibia and Fibula. Ex.P.5 - Wound Certificate discloses the injuries suffered by the claimant and also discloses that the complainant had visited the hospital for the first time i.e., on 24.11.2010. MLC Register at Ex.P.12 would also indicate that she had attended the Hospital only on 24.11.2010. The MLC register would also indicate that for the first time, the X-ray was taken on 23.11.2010. If the accident had taken place on 20.11.2010, if the claimant had suffered accidental injuries and as stated by the claimant that she suffered fracture of Tibia and Fibula would not have kept quite for four long days without taking any treatment, that itself is sufficient to hold that the claimant failed to prove the accident. Moreover, from the material on record it appears that claimant only to find out vehicle which could be implicated in the case, took four days time to lodge the complaint. Further, Ex.P.4 - IMV report indicates that there is no damage to motorcycle. Thus, I do not find any erroneous or perverse in the judgment passed by the Tribunal. Hence, the appeal is dismissed.
Sd/- JUDGE HA/-