IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 BEFORE:
THE HON’BLE MR. JUSTICE B.MANOHAR MFA.NO. 6213/2011 (MV) BETWEEN:
MR.H.AJAY, S/O D.P.HANUMANTHARAYAPPA, AGED ABOUT 27 YEARS, R/AT NO. 62, 4TH CROSS, DODDABIDARAHALLI, NAGASANDRA (POST), BANGALORE-560 073. ... APPELLANT (BY SMT.BHANU.H.M. FOR SRI.M.R.KUMARASWAMY, ADV.) AND:
1. MR.K.LOKESH, S/O V.KEMPAIAH, R/AT NO.1112, 10TH FLOOR, PLATINUM CITY ‘O’ BLOCK, PEENYA HMT MAIN ROAD, BANGALORE.
2. NATIONAL INSURANCE COMPANY LTD., DIVISION OFFICE-V, NO. 72, UNITY BUILDING ANNEXURE, MISSION ROAD, BANGALORE-560 027. ... RESPONDENTS (BY SRI.M.NARAYANAPPA, ADV. FOR R2, R.1 SERVED UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.2.2011 PASSED IN MVC NO.4922/2009 ON THE FILE OF II ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: -
J U D G M E N T Appellant being the claimant has filed this appeal challenging the legality and correctness of the judgment and award dated 22-02-2011 made in MVC No.4922/2009 passed by the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as "the Tribunal" for short) dismissing the claim petition filed by him.
2. The appellant filed a claim petition contending that on 20-05- 2009, while he was proceeding in a motorcycle bearing Registration No.KA-04/EZ-1826 as a pillion rider on NH-4 Service Road along with his friend Manjunath, at about 5.30 p.m., when they reached near Devi Hotel, 8th Mile, T.Dasarahalli, rider of the motorcycle rode the same in a rash and negligent manner and suddenly applied the break, on account of which, he lost control over the vehicle. Due to that the rider as well as the pillion rider fell down and sustained grievous injuries. Immediately after the accident, the claimant was shifted to Sarojini Hospital for the first aid treatment. Thereafter, he took treatment in NRR Hospital at Bengaluru. In the accident he has sustained fracture of both the bones of left forearm. He was inpatient for a period of 3 days. Prior to the accident, the claimant was working as a Team Leader in Bajaj Allianz General Insurance Company an earning Rs.10,000/- p.m. Due to the injuries he has sustained in the accident, he is not in a position to do the work which he was doing prior to the accident. The police have registered a case in Crime No.98/2009 against the rider of the motorcycle. Hence, the registered owner as well as the insurer of the offending vehicle are liable to compensate the claimant to the tune of Rs.10,00,000/-.
3. The insurance company defended the case by filing the written statement whereby it was contended that rider of the offending vehicle was not having valid and effective driving license as on the date of accident. No document has been produced to show that he had taken treatment in the hospital for the injuries he had sustained in the alleged accident. The accident was not made known to the insurance company. The compensation claimed is exorbitant and sought for dismissal of the claim petition.
4. On the basis of pleadings of the parties, the Tribunal framed necessary issues.
5. The claimant in order to prove his case got examined himself as P.W.1 and the doctor who treated the claimant was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P13. On behalf of the respondents, the Administrative Officer of the insurance company was examined as R.W.1. and the Insurance policy was marked as Ex.R1.
6. The Tribunal after appreciating the oral and documentary evidence let in by the parties, held that the claimant has failed to prove the occurrence of the accident and injuries sustained by him. Further, no documents have been produced from Sarojini Hospital to show that he has sustained injuries and there is delay of two days in lodging the complaint. The offending vehicle has not sustained any visible damages. Accordingly, dismissed the claim petition. Being aggrieved by the judgment and award passed by the Tribunal, the claimant has preferred this appeal.
7. Smt.Bhanu, learned counsel appearing on behalf of Sri.M.R.Kumaraswamy, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. Innumerable documents have been produced to show that in view of occurrence of the accident on 20-05-2009 at T.Dasarahalli, the claimant has sustained injuries. The Police have registered a case in Crime No.98/2009 against the rider of the motorcycle. Thereafter, the police have conducted mahazar, IMV report was also made available to the Tribunal. Immediately after the accident, initially the claimant had taken treatment in Sarojini hospital, thereafter he was shifted to NRR hospital at Bengaluru, wherein, he had undergone surgery and he was inpatient for a period of 3 days. All these documents were made available to the Tribunal, however the Tribunal without taking into consideration all these documents dismissed the claim petition which is contrary to law. Hence sought for setting aside the said judgment and award by allowing this appeal.
8. On the other hand, Sri.M.Narayanappa, learned counsel appearing for the second respondent-insurance company argued in support of the judgment and award passed by Tribunal and contended that no document has been produced to show that the claimant has sustained injuries in the accident occurred on 20th May 2009. Though the accident occurred on 20-05-2009 at about 5.30 p.m., the claimant was admitted to the hospital on 21-05-2009 at about 10.30 a.m. The complaint was lodged on 22-05-2009. there is delay of two days in lodging the complaint, for which, no reasons has been assigned. Further, no visible damage is being caused to the offending motorcycle. The Motor Vehicle Inspect report clearly disclose the said aspect of the matter.
Though the claimant has examined some of the eye witnesses in the criminal proceedings, they have not been examined in this proceedings. The Tribunal taking into consideration all these aspects of the matter dismissed the claim petition. Hence, sought for dismissal of the appeal.
9. I have carefully considered the arguments addressed by the learned counsel appearing for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties.
10. The records produced by the parties clearly disclose that the claimant has sustained injuries in the road traffic accident occurred on 20-05-2009 at about 5.30 p.m., while he was proceeding on the offending motorcycle as a pillion rider, due to the rash and negligent riding of the said vehicle. Immediately after the accident, he took first aid treatment at Sarojini hospital. The rider of the motorcycle assured that he will take care of the medical expenditure. Hence, the claimant went home, but next day morning there was swelling in both the hands and developed pain. Therefore, on 21-05-2009, the claimant got admitted to the NRR hospital and took treatment as inpatient. During the course of treatment, on X-ray, it was found that the claimant had sustained fracture of both bones of left forearm. He has undergone surgery in the said hospital. The documents produced by the claimant clearly disclose that in the accident occurred on 20-05-2009, while he was proceeding as a pillion rider, he fell down and sustained fracture of both the bones of left forearm. The police records supported the case of the claimant.
11. The claimant in his evidence has clearly stated that he has sustained injuries in the road traffic accident occurred on 20-05-2009 and he had undergone surgery. Though the claimant was cross-examined by the insurance company, nothing contrary has been elicited in the said cross- examination. The doctor who treated the claimant was examined as P.W.2. In his evidence, he has clearly deposed that the injured person was admitted to the hospital on 21-05-2009 on account of the accident occurred on 20-05-2009. On X-ray, it was found that he has sustained fracture of both the bones of left forearm, i.e. fracture of radius and ulna. He had undergone surgery, ORIF with implant. In the cross-examination he has clearly stated that he has taken treatment as inpatient for a period of 3 days.
12. The Administrative Officer of the insurance company was examined as R.W.1, who, in his evidence also has not disputed the injuries sustained by the claimant and the treatment he had taken. The police records produced and the mahazar drawn by the police clearly disclose the occurrence of the accident and injuries sustained by the claimant. The Tribunal without taking into consideration all these aspects of the matter doubted the occurrence of the accident solely on the ground that there is no physical damages to the offending motorcycle and no record has been produced regarding treatment and injuries sustained by the claimant. The judgment and award passed by the Tribunal cannot be sustained and the matter has to be considered afresh by the Tribunal taking into consideration all the documents produced by the parties. Accordingly, I pass the following:-
ORDER The appeal is allowed. The judgment and award dated 22-02-2011 made in MVC No.4922/2009 passed by the Motor Accident Claims Tribunal, Bengaluru is set aside and the matter is remanded to the Tribunal to consider the same afresh on the basis of the records available and pass orders in accordance with law, as expeditiously as possible, not later than six months from the date of receipt of a copy of this order.
Sd/- JUDGE mpk/-*