IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE BELLUNKE A.S.
M.F.A. NO.3543 OF 2013 (MV) BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LIMITED BENGALURU -38 THROUGH ITS REGIONAL OFFICE MAHALAKSHMI CHAMBERS, M.G. ROAD BENGALURU-560 001 REP. BY ITS MANAGER SRI V. RAMACHANDRAN ... APPELLANT (BY SRI.LAKSHMINARASAPPA FOR B.C. SEETHARAMA RAO, ADVOCATES) AND:
1. SRI VENKATACHALAIAH MAJOR S/O LATE VENKATARAMANAIAH NO.6, S.N. STORES BUILDING 8TH "A" CROSS, EJIPURA BENGALURU – 560 047.
2. SRI MADHAYARI YADAGIRI MAJOR RESIDENT OF FLAT NO.304 S.M. ARCADE, APARTMENT-1, 2ND STREET, CAUVERY ROAD UDAYANAGAR, BENGALURU. ... RESPONDENTS (NOTICE TO R-1 IS HELD SUFFICIENT VIDE ORDER DATED 24.04.2017, R-2 SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.10.2012 PASSED IN MVC NO.5906/2010 ON THE FILE OF THE 21ST ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.60,654/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard the learned counsel for the appellant- Insurance Company. Respondent No.2 though served remained unrepresented. Therefore, arguments of the respondent No.2 are taken as nil.
2. That the appeal has been filed against the judgment and award dated 11.10.2012 passed in MVC No.5906/2010 by the Motor Accident Claims Tribunal and XXI Additional Judge, Court of Small Causes, Bangalore awarding compensation to the claimant in respect of injuries suffered by him in a road traffic accident.
3. Brief facts of the case are as under:
According to the claimant, on 11.07.2019 at about 10.30 a.m., when he was riding his bicycle slowly, carefully and cautiously observing all traffic rules on N.H.48 Road, Kunigal Town, a Qualis Car bearing Registration No.KA-05- MF-2250 was driven in a rash and negligent manner and hit the bicycle of the claimant/petitioner from his behind. On account of the said accident, he was thrown out and sustained injuries. Thereafter, he was immediately shifted to Krishna Hospital, Kunigal wherein he was treated as an inpatient for the injuries sustained by him. He was discharged on 16.07.2009. He has taken bed rest on the advice of the doctor. He has spent Rs.50,000/- for his treatment. He has suffered permanent disability on account of injuries sustained by him. He is not able to lift any weight or rise his right hand above the shoulder level. He was a driver by profession and earning Rs.6,000/- per month and now because of the injuries sustained by him in a road traffic accident, he has become disabled. Hence, respondent Nos.1 and 2 being owner and insurer of the vehicle respectively are liable to pay the compensation and accordingly, he had filed the petition in MVC No.5906/2010. Respondent No.2 alone contested the petition by filing objections. Respondent No.2 has denied all the allegations made in the claim petition and contended that there is no compliance of 158(6) of M.V.Act by the concerned police. The driver of Qualis Car had no effective driving licence as on the date of the accident and the manner of occurrence of the accident is denied. There is a delay of 6 months in lodging the complaint before the police. A Qualis car has been falsely implicated to get compensation and hence, respondent seeks to dismiss the petition.
4. The Tribunal framed the following issues:
1. Whether the petitioner proves that, he sustained grievous injuries in a road traffic accident, that occurred on 11.07.2009 at about 10.30 a.m.., in front of Revathi Hotel, NH-48 Road, Kunigal Town, Tumkur District, due to rash and negligent driving of the Qualis Car bearing Regn.No.KA-05-0MF-2250 by its driver?
2. Whether the petitioner proves that, he is entitled for compensation? If so, at what quantum and from whom?
3. What order and award?
5. The Tribunal after holding trial awarded a compensation of Rs.60,654/- with interest @ 6% p.a. from the date of petition till deposit. The said judgment and award has been challenged by the Insurance Company on following grounds:
It is contended that the Tribunal ought to have dismissed the petition even though the car is said to have been parked at the place of the accident and vehicle number was also available with the claimant/petitioner, no complaint was filed before the police immediately. The complaint came to be filed on 11.07.2009 vide Ex.P1. The doctor – PW-2 though claims that he has intimated the police on the same day about the treatment of the victim in the hospital, but, Ex.P13 is a manipulated register. The same goes to show that hand writing is different. It is also submitted that claimant/petitioner is not a resident of Bengaluru. He is a resident Kunigal Town. The case in hand is a concocted one and said to have been prepared before registration of the claim in question. Further, he also contends that the quantum of compensation awarded by the Tribunal is excessive. The Tribunal has not applied its judicial mind in the case on hand. Therefore, learned counsel for appellant has sought to dismiss the petition.
6. The following point arises for consideration:
Whether the claimant/petitioner had proved that he had sustained injuries in a motor vehicle accident by the car owned by respondent No.1 and insured with respondent No.2?
7. Admittedly, there is a delay of six months in filing the compliant before the police. The Tribunal find that the evidence on record has been corroborated by the documents. The owner and driver did not deny the fact of accident. For mistake of police in registering the claim belatedly, the case of the claimant/petitioner should not be dismissed. The respondent has not appeared before this Court to substantiate the reasons assigned by the Tribunal or to point out any malafides which goes in his favour to prove that he sustained injuries on account of motor vehicle accident.
8. PW-1 before the Tribunal has admitted in the cross examination, that after his bicycle was hit by the car, it was parked there itself. He was admitted to the hospital by one Krishnappa who had seen the accident. He had also observed the number of that motor vehicle. He regained consciousness in the evening at about 6.00 p.m. The statement of the said Krishnappa was recorded by the Kunigal police in the evening in the Krishna Hospital itself. The place of the accident is shown by the said Krishnappa. Very strangely said Krishnappa has not been examined by the claimant/petitioner. This is a serious lacuna which has not been considered by the Tribunal. The Tribunal who had treated the claimant/petitioner has admitted in the cross examination that there is nothing on record to show that MLC record belongs to Krishna Hospital. The matter written in Ex.P3 register might have been written by another doctor who was on duty and it does not bear any signature. The details about the accident and vehicle number were written by different persons. He also claims to have sent intimation about the injured being treated in the hospital on account of injuries sustained in the accident. On perusal of the above said evidence, I find that the petitioner has failed to prove that he was injured on account of accident caused by the offending vehicle in question by respondent No.1 though the owner or driver have not denied the fact of accident. But there is a glaring suspicion in the case of claimant/petitioner. Because, there is not only delay in registering the complaint but at the same time panchanama produced at Ex.P2 goes to show that it was drawn on 17.01.2009, the day on which complaint was not at all registered by the police. This fact should have been explained by the claimant/petitioner in his evidence. The concerned IO who had drawn the seizure mahazar of the vehicle is on 28.04.2010 which is after the accident in question, is not examined. The eye witness Krishnappa who had seen the accident should have been examined by the claimant/petitioner. Non examination of the said witness is fatal to the case of the petitioner. Though the petitioner is said to be the resident of Kunigal Town where the accident took place, the petition is filed by showing care of address of Ejipura, Bengaluru. The owner of the car is said to be resident of Udayanagar, Bengaluru. The police have not issued any notice to the owner or the driver. The complaint registered by the petitioner was much lapse of time after the accident. PC 366, who showed the vehicle parked in the premises of the police station has not been examined. Who brought this vehicle to the police station, is not known. Therefore, the case appears to be highly doubtful one. Though the claimant/petitioner might have suffered injuries on account of road traffic accident, the inference that can be drawn is hit and run case. A false case has been filed by showing the address of the Bengaluru and the vehicle number of the Bengaluru is chosen to claim compensation. Under these circumstances, I find that the Tribunal ought not to have allowed the claim petition. In the result, the judgment and award suffers from serious illegality. It is not in accordance with the evidence available on record. Merely because the claimant/petitioner was not responsible for inaction on the part of the police would not by itself explain or correct the lacuna in the case of the claimant/petitioner. Non examination of said Krishnappa who was eye witness available for the petitioner amounts to withholding of the best evidence available for the petitioner. Consequently, adverse inference should be drawn against him.
9. For the aforesaid reasons, the point is answered in the negative. Consequently, I pass following ORDER The appeal filed by the Insurance Company is allowed. The judgment and award dated 11.10.2012 passed in MVC No.5906/2010 by Motor Accident Claims tribunal and XXI Additional Judge, Court of Small Causes, Bangalore against respondent Nos.1 and 2 is set aside. Consequently, claim petition stands dismissed.
Parties to bear their own costs.
Amount in deposit, if any, is ordered to be refunded to the appellant/Insurance Company.
(Sd/-) JUDGE Prs*