IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3194 OF 2013 (MV) BETWEEN:
N.B.DEVARAJU, S/O G.N.BOREGOWDA, AGED ABOUT 47 YEARS, R/A NARIHALLI HERISAVE HOBLI, CHANNARAYAPATTANNA TALUK, AT PRESENT R/A ALADHAHALLI, GANDASI HOBLI, ARASIKERE TALUK. ... APPELLANT (BY SMT.P.V.KALPANA, ADVOCATE) AND:
1. THE MANAGER, M/S.NATIONAL INSURANCE CO. LTD., TUMKUR DEPARTMENT, BANGALORE ROAD, TUMKUR.
2. K.TEJAS, S/O C.B.KUMAR, MAJOR, R/A HORAPETE, TURUVEKERE TALUK, TUMKUR DISTRICT. ... RESPONDENTS (BY SMT.GEETHA RAJ, ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.09.2011 PASSED IN MVC NO.6/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, MEMBER, MACT, ARASIKERE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal, aggrieved by the dismissal of the claim petition under judgment and award dated 07-9-2011 in MVC No.6/2010 on the file of the Senior Civil Judge & JMFC, Member-MACT at Arasikere.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by the claimant in a road traffic accident. It is stated that on 22-9-2009, when the claimant was proceeding as pedestrian and was waiting for Bus, the rider of motorcycle bearing Reg.No.KA-44-H-7506 came in a rash and negligent manner and dashed to the claimant. Due to which, he sustained grievous injuries.
3. On issuance of notice, respondent Nos.1 & 2 appeared before the Tribunal and filed their independent written statement. Respondent No.1 in his written statement denied the claim petition averments and further stated that the rider of the motorcycle was riding motorcycle carefully following the traffic rules. The claimant himself suddenly started to cross the road, due to which the accident had taken place. Further, respondent No.1 stated that the vehicle was insured with respondent No.2-insurer. Respondent No.2-insurer in its statement admitted the issuance of policy with respect to the offending motorcycle but stated that the rider of the motorcycle did not possess a valid and effective driving licence as on the date of accident and it is also stated that the claim is exorbitant and excessive.
4. In support of his claim, the claimant examined himself as PW-1 and also examined PWs-2 & 3 Doctors, apart from marking documents Exs.P-1 to P-28. Respondent-Insurer examined RW-1/Official of the Insurance Company and got marked document Ex.R1/Copy of the Insurance Policy.
5. The Tribunal under impugned judgment and award dated 07-9-2011, dismissed the claim petition on the ground that there is a delay of 7 days in lodging the complaint and also on the ground that offending vehicle is not involved in the accident. Being aggrieved by the dismissal of the claim petition, the claimant is in appeal, praying to set aside the judgment and award of the Tribunal.
6. Heard the learned counsel for the claimant-appellant and learned counsel for the respondent-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the judgment and award of the Tribunal is wholly erroneous and perverse. She further submits that the Tribunal has failed to appreciate the material on record and particularly failed to appreciate Ex.P-28/Copy of MLC Register, which would clearly indicate that the claimant had got admitted to the Hospital on 22-9-2009 at about 2:15 PM with history of RTA(road traffic accident). The accident had taken place on 22-9-2009 and the complaint was lodged on 29-9-2009, 7 days after the accident and reason for delay in lodging the complaint was that respondent No.1 had assured the claimant that he would take care of the expenses of the treatment and had requested not to lodge the complaint. As the first respondent failed to take care and pay the medical expenses, the complaint was lodged on 29-9-2009, the Tribunal failed to appreciate the said reason. Based on the material on record, the Tribunal could not have doubted the occurrence of the accident that had taken place on 22-9-2009. Ex.P3/wound certificate and Ex.P28/Copy of MLC Register would establish that the claimant got admitted to the Hospital on 22-9-2009 with history of RTA. The Tribunal, without there being any reason, was of the opinion that the claimant has not admitted himself to the hospital for treatment on 22-9-2009. Ex.P2-complaint indicates the reason for delay in lodging the compliant. Thus, she prays for allowing the appeal.
8. Per contra, learned counsel for the respondent- insurer would submit that the Tribunal rightly dismissed the claim petition as the claimant failed to establish the accident which alleged to have taken place on 22-9-2009. Learned counsel further submits that there is a delay of 7 days in lodging the complaint and the reason assigned for delay in lodging the compliant cannot be believed in the facts and circumstances of the case. Further, learned counsel referring to intimation of the police dated 28-9-2009 which is appended to Ex.P3 submits that the intimation letter notes that the claimant got admitted to the Hospital on 28-9-2009. Therefore, the Tribunal rightly rejected the claim petition. It is her further submission that the claimant has not made out any ground to interfere with the judgment and award of the Tribunal. Thus, she prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the entire material on record including the lower court records, the only point which arises for consideration in the facts and circumstances of the case 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 is in the negative for the following reasons:
10. The claim petition was filed stating that the claimant suffered accidental injuries in a road traffic accident that had taken place on 22-9-2009 involving motorcycle bearing Reg.No.KA-44-H-7506. Based on the pleadings of the parties, the Tribunal had framed issue as to whether the claimant proves that he suffers accidental injuries due to the accident that had taken place on 22-9-2009 involving motorcycle bearing Reg.No.KA-44-H-7506. The said issue was answered in the negative and the claim petition was dismissed.
11. On careful perusal of the judgment and award, the reason assigned by the Tribunal to dismiss the petition, based on the Police Intimation appended to Ex.P3 is wholly erroneous and perverse. The dismissal of the claim petition is the result of misreading of documents placed on record. It is an admitted fact that even though the alleged accident had taken place on 22-9-2009, the claimant lodged the complaint only on 29-9-2009. In Ex.P2- complaint, column ‘12’ reads as follows:-
“12. First Information Contents: F PÉù£À ¸ÁgÁA±ÀªÉãÉAzÀgÉ ¢£ÁAPÀ 22-09-2009 gÀAzÀÄ ªÀÄzÁåºÀß 12-30 UÀAmÉAiÀÄ°è ¦ügÁå¢AiÀÄÄ £ÀÄUÉÎúÀ½è ¢qÀUÀ gÀ¸ÉÛ CPÀÌ£ÀºÀ½î PÁæ¸ï ºÀwÛgÀ §¸ïì PÁAiÀÄÄvÁÛ ¤AwzÁÝUÀ ªÉÄîÌAqÀ DgÉÆæAiÀÄÄ vÀ£Àß ªÉÆÃmÁgï ¨ÉÊPÁzÀ KA-44-H-7506 ¨ÉÊPï£ÀÄß CwêÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄAzÀ Nr¹PÉÆAqÀÄ §AzÀÄ ¦ügÁå¢UÉ rQÌ ªÀiÁrzÀ ¥ÀjuÁªÀÄ JqÀUÁ°£À ºÉeÉÓAiÀÄ ªÉÄÃ¯É ºÁUÀÆ JqÀzÉ PÁ°£À ªÀÄArUÉ wêÀæ KlÄ ©zÀÄÝ gÀPÀÛUÁAiÀÄ ¥Àr¹zÀÄÝ, ¥ÉưøÀjUÉ ªÀiÁ»w PÉÆqÀzÉ UÁAiÀiÁ¼À£ÀÄß ºÁ¸À£À ¸ÀPÁðj D¸ÀàvÉæUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV aQvÉì PÉÆr¹zÀÄÝ ¦ügÁå¢UÉ D¸ÀàvÉæAiÀÄ RZÀÄð ¨sÀj¸ÀĪÀÅzÁV ºÉý E°èAiÀÄ ªÀgÉUÀÆ AiÀiÁªÀÅzÉà RZÀÄð PÉÆqÀzÉ EzÀÄÝzÀÝjAzÀ F ¢£À ¦ügÁå¢ D¸ÀàvÉæAiÀÄ°è ªÉÄîÌAqÀ ¨ÉÊPï ZÁ®PÀ£À ªÉÄÃ¯É PÁ£ÀÆ£ÀÄ jÃvÁå PÀæªÀÄ PÉÊUÉƼÀî¨ÉÃPÉAzÀÄ PÉÆlÖ ºÉýPÉ ªÉÄÃgÉUÉ ¥Àæ.ªÀ.ªÀgÀ¢. (F PÀÆqÀ ªÀÄÆ® ¦ügÁåzÀ£ÀÄß ®UÀwÛ¹ ¤ªÉâ¹PÉÆArgÀÄvÉÛ.)”
12. Admittedly, there is a delay of 7 days in filing the complaint. The claimant has explained the delay for lodging the complaint, stating that the rider of the motorcycle had taken him to Government Hospital for treatment and he had assured to take care of the Hospital expenses and subsequently had not cared to bear the expenses, which made the complainant to lodge the complaint. Ex.P3-Wound Certificate would indicate that the claimant got admitted to the Hospital on 22-9-2009 with history of RTA and it also notes the injuries sustained by the claimant. Ex.P28-MLC Register maintained by Sri Chamarajendra Hospital, Hassan, reveals that the claimant got admitted on 22-9-2009 at 2:15 PM with history of RTA. Ex.P5-Discharge Summary discloses that the claimant got admitted to Sri Chamarajendra Hospital, Hassan on 22-9-2009 with history of RTA and got himself discharged on 06-10-2009. Further, the Discharge Summary also notes the date of surgery as 24-9-2009. The Tribunal based only on Police Intimation letter dated 28-9-2009 appended to Ex.P3, wherein it is stated that the claimant got admitted to the Hospital on 28-9-2009 could not have come to the conclusion that the accident had not taken place on 22-9-2009. The lower portion of the police intimation letter indicates the “D.O.A 22-9-2009”, whether it is date of accident or date of admission is not correctly mentioned. But admittedly, the accident had occurred on 22-9-2009 and the claimant got admitted to the Hospital on 22-9-2009 as per Ex.P3-Wound Certificate and Ex.P28- MLC Register/Accident Register.
13. Ex.P2 is FIR and Ex.P4 is mahazar. The Tribunal could not have doubted the mahazar, which is conducted within one or two hour of lodging the FIR. Admittedly, the FIR was registered on 29-9-2009 at 1:00 PM, whereas the mahazar is conducted on 29-9-2009 at about 2:30 PM. Because, the police have conducted mahazar within one or two hours of the alleged complaint, cannot be a reason to disbelieve the same. It could be said that the police have taken immediate action to conduct the spot mahazar. The finding of the Tribunal that till 28-9-2009, the claimant has not taken any treatment for the accidental injuries sustained by him is also not correct. The Discharge Summary-Ex.P5 indicates that on 24-9-2009, the claimant had undergone surgery. Further, the Tribunal has given a finding that in Ex.P28 the date has been corrected, but on perusal of Ex.P28, no such correction is found. The dismissal of the claim petition is non-appreciation of the material on record. PW-2-Doctor in his evidence has specifically deposed that the claimant got admitted to the Hospital on 22-9-2009 at about 2:15 PM and further stated that on 28-9-2009, intimation to the police has been sent. On overall examination of the evidence of PWs-1 to 3 and documents on record, I am of the view that the judgment and award requires to be set aside and claimant is to be given an opportunity to place on record any further evidence and the Tribunal to reassess the material placed on record and to pass an appropriate judgment and award in the matter.
Accordingly, the judgment and award of the Tribunal is set aside remanding the claim petition to the Tribunal, with liberty to the parties to lead further evidence. Thereafter, the Tribunal to reassess the material on record and pass an appropriate judgment and award.
Sd/- JUDGE SMJ