IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.5353/2012 (MV) BETWEEN:
M.S. Shivakumar S/o Sharanappa Aged about 17 years Represented by his next Friend Natural guardian Father Sharanappa S/o Rajappa, 41 years Now R/o Medehally Road 3rd Cross Near RMC Market Chitradurga.
(By Sri. R. Shashidhara, Advocate) AND:
1. The Manager M/s. Chetak Logistics Ltd., No.5, Transport Center Punjabi Bagh, New Delhi Post, Owner of Lorry bearing No.HP/47-9330.
…Appellant 2. The Regional Manager The New India Assurance Co. Ltd., Divisional Office, A.M. Arcade C.G. Hospital Road, Davanagere.
(By Sri M. Narayanappa, Advocate for R2;
… Respondents R1-Notice is held sufficient vide Court Order dated 25.04.2016) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 27.12.2011 passed in MVC No.62/2008 on the file of the Principal Civil Judge, Senior Civil Judge & CJM, Additional MACT, Chitradurga, dismissing the claim petition for compensation.
This MFA coming on for Admission this day, the Court delivered the following:-
J U D G M E N T The present appeal has been preferred by the appellant-claimant assailing the judgment and award passed by the Principal Civil Judge (Sr.Dn.) and Additional MACT, Chitradurga, in MVC No.62/2008 dated 27.12.2011.
2. Heard. Appeal is admitted. With consent of learned counsel appearing for the parties, it is taken up for final disposal.
3. The brief facts of the case as per the petition are that on 7.1.2016 at about 4.30 p.m. petitioner-Shivakumar was crossing the road on NH.13 in order to go to Hulikere village, at that time, a lorry bearing Registration No.HR- 47/9330 came rashly and negligently and dashed against the petitioner – Shivakumar and as a result of the same he sustained grievous injuries and immediately he was admitted to Hosahalli Primary Health Centre and thereafter he was admitted to Chitradurga Government Hospital. It is further contended that the petitioner has sustained grievous injuries and has spent huge amount and as such a claim petition came to be filed claiming compensation.
4. On issuance of notice respondents 1 and 2 appeared, but respondent No.1 has not filed any objections. Respondent No.2 filed his objections by denying the contents of the petition. He has further contended that the lorry in question is not involved in the accident and if at all the liability is there, it is subject to the terms and conditions of the policy.
5. On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that he sustained injuries in the alleged RTA occurred on 6.1.2006 at about 4.30 p.m. near Hulikere Cross, NH13 road, Hulikere, Kudligi Taluk on account of actionable rash and negligence of driver of lorry bearing No.HR-47/9330?
2. Whether the petitioner proves that he is entitled for compensation? If yes, how much and from whom?
3. What order or award?
6. In order to prove the case of the minor petitioner, his father PW1 came to be examined and got marked documents Exs.P1 to P17. On behalf of respondent No.2 RW1 came to be examined and got marked document Ex.R1-Insurance Policy. After hearing the parties to the lis, the impugned judgment and award came to be passed where under the petition came to be dismissed. By assailing the said judgment, the appellant is before this Court.
7. The main grounds urged by the learned counsel for the appellant is that the complaint came to be filed and after completion of investigation, the Investigating Officer has filed charge sheet. That itself clearly goes to show that there was an accident and Panchanama has been drawn and the appellant-claimant has sustained injuries in the said accident. It is further contended that the respondent- Insurance Company has not challenged the said charge sheet and now it cannot lie in the mouth of the respondent-Insurance Company that there was no accident and there is no liability on the respondent-Insurance Company. He has further contended that there is no specific defence taken by the respondent-Insurance Company to show that there is no accident and the said vehicle has not been involved in the said accident. He has further contended that the complaint was given rightly on 7.1.2006, but it is not on the fault of the appellant that the endorsement has been made on 6.1.2006 and the said endorsement has been made by the police officials without fault of the appellant. He has further contended that the wound certificate which has been issued at Ex.P4 is also issued by the concerned authority by taking into consideration the MLC register, but the time has been wrongly mentioned as 2.30 p.m. instead of 4.30 p.m. He has further contended that there is no fault on the appellant-claimant. He has further contended that the Tribunal ought to have considered the charge sheet material produced along with the petition and the material would have been appreciated and the petitioner would have been awarded by quantifying the compensation which he is entitled. On these grounds he prayed for allowing the appeal.
8. Per contra, the learned counsel appearing on behalf of the respondent-Insurance Company vehemently argued and contended by justifying the judgment and award. He has further contended that the complaint Ex.P1 has been subsequently given and the endorsement made by the police officials clearly indicates that there is a wrong mention of the date as 6.1.2006. Even the wound certificate Ex.P4 also clearly goes to show that prior to the time of accident the petitioner was got admitted at 2.30 p.m. before the accident has taken place and even the charge sheet materials which has been produced along with a petition they are not admissible under Section 76 of the Evidence Act, since they have not been attested or certified by any competent authority and under what authority the said documents have been issued. He further contended that the Tribunal after taking and analyzing the facts and circumstances has came to a right conclusion and thereby dismissed the petition and the same has to be confirmed. On these grounds he prayed for dismissal of the appeal.
9. I have gone through cautiously and carefully the submissions made by the learned counsel appearing for both the parties. I have also perused the original records which have been produced along with the appeal.
10. As could be seen from the records Ex.P1, the complaint came to be filed on 7.1.2006, however, as could be seen from the endorsement made by the police it has been mentioned as 6.1.2006. Be that as it may. The wound certificate which has been produced at Ex.P4 had no where speaks that the injured has sustained the injuries in a road traffic accident and apart from that even though the date of admission is on 7.1.2006, but the appellant– claimant has been admitted in the hospital at 2.30 p.m. when admittedly the accident has taken place at 4.30 p.m. on 7.12006. Then under such circumstances prior to the accident how the appellant was got admitted in the hospital is a fishy one and I have considered the material facts which have been produced, they clearly indicates the fact that the appellant has got admitted in the hospital prior to the accident and when that is the fact then under such circumstances it cannot be held that the appellant has sustained injuries in the accident occurred on 7.1.2006 at 4.30 p.m.
11. Be that as it may. The learned counsel for the appellant contended that the charge sheet materials have been produced before the Court and the same has not been properly considered and appreciated. Even assuming for the sake of discussion, the charge sheet materials are going to be filed only on the basis of the complaint which has been filed by the complainant. Then there will not be any other issues. But, when the appellant has came up before this Court, with specific case that the accident has taken place on 7.1.2006 at 4.30 p.m., but the documents speaks differently, even the appellant has also not examine any of the witnesses which have been quoted in the charge - 10 -
sheet for the reasons best known to him. Though the learned counsel for the appellant has contended that the appellant is a minor and the matter be remitted to the trial Court, that itself is not a ground to remit back the matter to the trial Court. When the records itself clearly indicates the fact that the appellant has not sustained any injuries in the alleged accident which has been occurred on 7.1.2006 at 4.30 p.m., then under such circumstances, the findings given by the Tribunal appears to be proper and it does not require any interference at the hands of this Court.
12. In view of the above discussion it can be safely held that the appeal is devoid of merits and the same is liable to be dismissed, accordingly it is dismissed.
Sd/- JUDGE *AP/-