IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT M.F.A. NO.1124/2013 (MV) BETWEEN:
NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE # 11-169, SUBASH ROAD ANANTHAPURA- 515001 SERVICE ADDRESS: THE MANAGER NATIONAL INSURANCE CO.LTD., BY ITS BRANCH OFFICE AT HINDUPURA, PENAGONDA ROAD ANANTHAPURA DIST., A.P.
NOW REPRESENTED BY ITS REGIONAL MANAGER NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE SUBHARAM COMPLEX 144, M G ROAD BANGALORE 560001. ... APPELLANT (BY SRI.A N KRISHNA SWAMY, ADV.) AND:
1. G N THIMMAREDDY S/O G.T.NARAYANAREDDY R/O YELAHANKA, BANGALORE NOW R/O KADAGATTHUR VILLAGE KODIGENANAHALLY HOBLI MADHUGIRI TALUK.
2. SUDHAKARAREDDY K S/O NARAYANAREDDY MAJOR #85-1213, JUMAKAL PALLY KOTAPI POST, HINDUPURA TQ., ANANTHAPURA DISTRICT, A.P. ... RESPONDENTS (BY SRI.PATEL D KAREGOWDA, ADV. FOR R1 SRI. M ERAPPA REDDY, ADV. FOR R2) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.09.2012 PASSED IN MVC NO.98/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MACT-13, MADHUGIRI, AWARDING A COMPENSATION OF RS.3,24,788/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant-Insurance Company is before this Court in this appeal assailing the judgment and award dated 28.09.2012 passed in MVC No.98/2009 on the file of the Additional Senior Civil Judge and JMFC, MACT-13, Madhugiri.
2. The appellant is the Insurer, 1st respondent is the claimant and 2nd respondent is the owner of Motor Bike bearing No.AP.02.R.7316. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, stating that on 27.05.2009 when the claimant and his friend were returning from Sira after attending a marriage of their relative, near Sira Doddakere on NH.4, the rider of the Motor Bike drove the vehicle in a rash, negligent manner and lost control of the vehicle and caused the accident. Due to the impact, the pillion rider sustained injuries. It is stated that the claimant took treatment initially at NIMHANS and subsequently at Sanjay Gandhi Hospital. For the injuries suffered, the claimant has claimed compensation.
3. On issuance of notice, respondent No.2 – the Insurance Company appeared before the Tribunal and filed its objection, they denied the petition averments and also contended that the accident took place due to the contributory negligence of the rider of the vehicle. It was also stated that there is two months and 3 days delay in filing the complaint. Based on the pleading the Tribunal framed the following issues :-
“ 1. Whether petitioner proves that he sustained injuries in an accident that occurred on 27.05.2009 at about 10.00 p.m near Sira-Doddakere on NH.4 to rash and negligent riding of motor cycle bearing Reg.No.AP.02.R.7316 by its rider ?
2. Whether petitioner is entitled for compensation? If so, to what extent and from whom ? ”
4. In support of his case, the claimant himself is examined as PW.1 and examined three other witnesses as PWs.2 to 4 and got marked documents Exs.P1 to P18. The respondent got marked Ex.R.1 – Insurance Policy.
5. The Tribunal based on the material on record has partly allowed the petition for the injuries sustained by the claimant in the accident that occurred on 27.05.2009, while he was riding his Motor Bike bearing No.AP.02.R.7316 and awarded total compensation of Rs.3,24,788/- and made the insurer liable. Aggrieved by the same, the insurer is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsels for respondent Nos.1 and 2. Perused the material on record.
7. The learned counsel for the appellant – Insurance Company would submit that the claimant was not the pillion rider, but he was rider of the Motor Bike bearing No. bearing No.AP.02.R.7316. He submits that the medical records of both NIMHANS and Sanjay Gandhi Institute of Trauma and Orthopaedics would indicate that the claimant was the rider of the vehicle and he sustained injuries as the bike skidded and he fell down. Further he contends that the alleged accident is said to have taken place on 27.05.2009 whereas the claimant claims that he had taken treatment for the injuries sustained from 27.05.2009 till 13.06.2009, whereas the complaint is filed after 40 days from the date of discharge. No medico legal case was reported from the hospital as the rider of the vehicle would not be entitled for compensation for his own negligence. The claimant has built up the present story that he was pillion rider. The medical records and surrounding circumstances would indicate that the claimant was riding the bike and claim made by him is totally false.
8. Per contra, the learned counsel for the respondents would submit that the Tribunal has rightly come to the conclusion that the claimant sustained injuries while he was proceeding as pillion rider on Motor Bike bearing Regn.No.AP.02.R.7316. It is his submission that mere delay in filing claim petition cannot be a ground to doubt the claim. He submits that the claimant was inpatient from 27.05.2009 till 13.06.2009, whereas the claimant has sustained 30% disability, thus he required assistance of others. His father PW.3 was assisting the claimant and as such his father also could not file complaint immediately. It is further submitted that the charge-sheet is filed against the rider of the bike and the Insurer has not challenged the charge sheet filed against Ambareesh, who was riding the vehicle on the date of accident. Therefore, he prays for dismissal of the appeal.
9. After hearing the learned counsels and on perusal of the material on record including the LCR, the only question that arises for consideration is as to whether the Tribunal was justified in holding that the claimant sustained injuries on 27.05.2009 while proceeding as pillion rider on Motor Bike bearing No.AP.02.R.7316. The answer to the said question is in favour of the Insurer.
10. The alleged accident is said to have taken place on 27.05.2009. Admittedly FIR was registered on 24.07.2009 as per Ex.P.2. The FIR was registered nearly after two months from the date of the accident and nearly after 40 days from the date of discharge of the claimant from the Hospital. Claimant states that he took treatment from 27.05.2009 till 13.06.2009 the date of discharge from Sanjay Gandhi Institute of Trauma and Othopaedics. But insurer has denied the claim. It is for the claimant to prove that he was pillion rider in the Motor Bike and suffered injuries due to fall from the Motor Bike. If he was riding the motor bike and sustained injuries, he would not be entitled for his own negligence. As such, it appears that the claimant has filed the complaint after 60 days, which is an after thought. Only to claim insurance, the claimant has hatched up a story that he was pillion rider, who sustained injuries. The medical record of NIMHANS where he was immediately taken on the date of accident i.e., 27.05.2009 at 11.00 a.m. would indicate that the claimant suffered injuries on account of fall from two wheeler and the same would indicate that he was the rider of the vehicle. Further the progress sheet of the Sanjay Gandhi Institute of Trauma and Orthopeadics would indicate the recording on 28.05.2009 as follows :-
“Alleged I/o R.T.A. on 27/5/2009 at 11.00 p.m. while he was driving the Bike skidded and fell and sustained trauma to (Rt) Thigh and over the Head.”
The above recording in the progress sheet would indicate that the claimant was admitted to Sanjay Gandhi Institute of Trauma and Orthopeadics, on the claimant sustaining injuries, while he was riding the bike, skidded and fell down and sustained Trauma to right thigh and over the head. Further no medico legal case was sent. Medico Legal Case report was not sent either by the NIMHANS or Sanjay Gandhi Institute of Trauma and Orthopeadics. The claimant has not examined any person from the hospital in that regard. Mere filing of charge-sheet against one Ambareesh would not be sufficient to believe the case of the claimant. Suffice it to say that the claimant has failed to examine Ambareesh, who is said to have been riding the bike on that day. Ambareesh would have been the best person to speak about the accident and to demonstrate that he was riding the vehicle on that fateful day. The surrounding circumstances and the delay in filing the complaint would indicate the claimant hatched up story to claim insurance amount and in that process there is delay in filing the FIR. The complainant nor his father have filed the complaint immediately after the accident nor immediately after discharge from the hospital. The complainant was discharged on 13.06.2009, whereas the complaint was filed on 24.09.2009 that too, nearly 40 days after discharge of the claimant from the hospital.
11. From the material on record and on close scrutiny of surrounding circumstances, I am of the view that the Tribunal committed an error in allowing the claim petition and awarding compensation in a sum of Rs.3,24,788/-. I am of the view, that there is no material or evidence on record to suggest that the claimant was pillion rider in Motor Bike bearing Reg.No.AP.02.R.7316 on the date of accident. For the reasons stated, the appeal is allowed. The impugned judgment and award dated 28.09.2012 is set aside. The claim petition is dismissed. The amount in deposit by the appellant be refunded to the appellant – Insurance Company.
Sd/- JUDGE NG*/CT:bms