IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL 2019 BEFORE THE HON’BLE DR. JUSTICE H.B.PRABHAKARA SASTRY M.F.A.NO.8998/2010 (MV) BETWEEN:
REYAZ AHAMED S/O ABDUL HAQ HUCHANGIDURGA HARAPANAHALLI TALUK DAVANGERE DISTRICT ... APPELLANT (BY SRI A.HANUMANTHAPPA, ADVOCATE) AND:
1. SADIQ S/O BASHA SAB RIDER OF MOTOR CYCLE BEARING REG.NO.KA-17/W-1076 R/O 1ST MAIN, 4TH CROSS BASHA NAGAR, DAVANGERE 2. SEVYA NAIK S/O SAMYANAIK OWNER OF MOTORCYCLE BEARING REG.NO.KA-17/W-1076 BANDRI THANDA, MEDLAGERE POST HARAPANAHALLI 3. THE MANAGER RELIANCE GENERAL INSURANCE COM LTD., CTS NO.472-474 VA KALBURGI SQUARE, DESAI CROSS DESHPANDE NAGAR HUBLI ... RESPONDENTS (BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R-3; R-2 SERVED; NOTICE TO R-1 IS DISPENSED WITH V/C/O DTD. 22.03.2016) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.08.2010 PASSED IN MVC NO.138/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT IX, HARAPANAHALLI, DIMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T 1. The appellant who was the claimant before the Court of the Senior Civil Judge and MACT IX at Harapanahalli (henceforth referred to as `The Tribunal’ for brevity), has challenged the judgment and award dated 10.08.2010 passed by the Tribunal in MVC No.138/2009 wherein it has dismissed his claim petition filed under Section 166 of the Motor Vehicles Act, 1988.
2. In his memorandum of appeal, the appellant has stated that the Tribunal has committed an error in misinterpreting the evidence led before it and came to a wrong conclusion that the claimant has failed to establish that the accident in question has occurred due to rash and negligent riding of a motorcycle bearing registration No.KA-17/W-1076 by its rider. The documents produced by the appellant were not properly appreciated.
3. Respondent no.3 is being represented by his counsel. Respondent no.2 is served, but has not chosen to appear in this appeal and notice to respondent no.1 is dispensed with.
4. Heard the arguments from both side.
5. The summary of the case of the claimant in the Tribunal is that on 15.04.2007, he was returning towards his village after attending his business and at about 9 p.m., while he was walking near Padaghatte at Huchangidurga Village, a motorcycle bearing registration No.KA-17/W-1076, being driven by respondent no.1 in a rash and negligent manner, came and dashed to him from his hind side. Due to the accident, he fell down and sustained injuries on various parts of his body. Since it was late night, on the next day, he managed to visit Bapuji Hospital at Davanagere and got admitted as an inpatient and took treatment in the hospital. The claimant, alleging that due to the injuries sustained by him in the accident, he has suffered financial loss and he has also lost his earning capacity and incurred medical expenses, has claimed a compensation of `8,00,000/- from respondent nos.1, 2 & 3 holding them as driver, owner and insurer of the alleged offending vehicle respectively. The Tribunal, after recording the evidence led before it and hearing both side, by its impugned judgment, dismissed the claim petition with costs. Being aggrieved by the said judgment, the claimant has preferred this appeal.
6. Learned counsel for the appellant in his arguments while reiterating the contention taken up by the appellant in his memorandum of appeal submitted that the Tribunal has appreciated the evidence in an improper manner. In the said process, it has ignored the vital material evidence got produced at the instance of respondent no.3-Insurance Company in the form of MLC extract at Ex.R1. Learned counsel submitted that the said MLC extract clearly goes to show that the accident in question has occurred due to rash and negligent riding of the motorcycle by its rider. However, the Tribunal ignoring the said MLC extract at Ex.R1 and giving over emphasis to the case sheet at Ex.P17 has disbelieved the evidence of the claimant which is not correct.
7. Learned counsel for respondent no.3-Insurance Company in his arguments submitted that the Tribunal has appreciated the evidence placed before it in its proper perspective. The Tribunal, only after considering that the documents produced by the claimant which by themselves go to show that the accident has not occurred in the manner depicted by the claimant, has rightly dismissed the claim petition.
8. The claimant, in order to prove his case, has got examined himself as PW.1 and got one Dr. T.R.Ravinath examined as PW.2 and got marked documents as Exs.P1 to P17. On behalf of respondent no.3-Insurance Company, it got examined Dr. G.Shivaprakash as RW.1 and one of its official as RW.2 and got marked documents as Exs.R1 & R2, which included the extract of MLC No.21010 as Ex.R1.
9. PW.1, in his examination-in-chief, has reiterated the contention taken by him in his claim petition. He has stated that the accident in question has occurred due to rash and negligent riding of the motorcycle bearing registration no.KA-17/W-1076 by its rider viz., respondent no.1 and due to the accident, he has sustained several injuries.
10. On the other hand, respondent no.3-Insurance Company contended that no accident has taken place in the manner narrated by the claimant. It is stated that involvement of the motorcycle bearing registration no.KA-17/W-1076 was an afterthought and the accident in question has not occurred in the manner as narrated by the claimant.
11. Even according to the claimant, the accident in question has occurred on 15.04.2007 at about 9 p.m. whereas the police complaint has been filed by him only on 21.04.2007 at 11.30 a.m. Thus, admittedly, there is a delay of six days in filing the complaint. However, the complainant in the very complaint which is marked at Ex.P2 has attempted to explain the delay stating that due to the accident, he was admitted as an inpatient in the hospital and underwent an operation and in his ignorance as to how and where the complaint has to be registered and due to financial difficulty, he could not lodge the complaint at the earliest. The claimant has reiterated the reason for the delay even in his evidence as PW.1 also. The Tribunal has noticed the alleged delay of nearly seven days in lodging the complaint as the primary reason for its suspecting case of the claimant.
Secondly, it is also noticed that the name of the alleged rider of the motorcycle at the first instance was shown as Mr. M.Rafiq, which was later changed into one Mr. Sadiq S/o Basha Sab. The Tribunal has assigned reason on its own to the effect that since the claimant and the accused came from the same village they were expected to know each other and as such there was no reason for the claimant to given an incorrect name of the rider of the motorcycle in his complaint. However, a perusal of the documents placed before the Tribunal go to show that the claimant, on the very next day of lodging the police complaint, has given a further statement as per Ex.P3 and has corrected the name of the rider of the motorcycle as Mr. Sadiq S/o Basha Sab instead of Mr. M.Rafiq and also has given the reason for such a mistake that had crept in his complaint. The Tribunal has not noticed the said explanation given by the complainant both for the delay in lodging the complaint with the Police and also about misquoting the name of the alleged rider of the motorcycle. Thus, one of the reasons for the Tribunal in disbelieving the case of the complaint appears to be not sound.
12. The second important aspect upon which the Tribunal has given much concentration is about the manner of occurrence of the accident. According to PW.1, the accident has occurred when the alleged rider of the motorcycle bearing registration no.KA-17/W-1076 is said to have dashed to him from his hind side on 15.04.2007 while he was returning to his village. No doubt, the complainant has not examined any other witnesses with respect to the manner of occurrence of the accident except his self serving evidence. Interestingly, the document which is in the form of a case sheet at Ex.P17 maintained by Bapuji Hospital, Davanagere with respect to the claimant when he was admitted as an inpatient in the hospital would go to show that in the history of illness it is mentioned as ‘an apparently alright patient, gives history of fall from bike due to skid at 10.00 p.m. on 15.04.2007’. At the same time, respondent no.3-Insurance Company also had led its evidence through RW.1 and RW.2 among whom RW.1 is a Medical Officer at Bapuji Hospital, Davanagere who as per the summons issued by the Tribunal has produced the MLC extract pertaining to the accident in question and the same was got marked as Ex.R1.
According to the evidence of the said Doctor, once a patient with the history of road traffic accident is brought to their hospital, they will register it as MLC and record the history as given by the patient or attendant to the patient who comes along with the patient in the MLC register and intimate the same to the Police, stating so, the witness has produced the MLC extract as per Ex.R1. In the said MLC extract, which is marked at Ex.R1, the history is mentioned as below:
“History of R.T.A. on 15.4.2007 at 9 P.M. in Uchangidurga Harapanahalli Taluk. Pt. was coming by walk to his residence, then a motor bike from back side came and hit the pt. He fell down and sustained injury to left hip and left femur. Pt. brought to B.H. Davangere for treatment”.
After making a comparative statement between Ex.P17 and Ex.R1, the Tribunal gave more emphasis to Ex.P17 and disbelieved Ex.R1. Consequently, it held that the claimant has failed to prove that the accident in question has occurred in the manner narrated by him in his claim petition which led to dismissal of his claim petition.
13. Ex.P17, admittedly is the case sheet maintained by the said hospital where the claimant has taken treatment as an inpatient for the injuries sustained by him in the accident in question. The history of illness recorded in the said case sheet is shown as ‘history of fall from bike due to skid’ whereas the history as recorded in the MLC extract at Ex.R1 gives a detailed version that the patient was coming by walk to his residence and then a motorbike from back side came and hit the patient due to which he fell down and sustained injury to left hip and left femur. No doubt the said document at Ex.R1 also shows that the police intimation was sent on 20.04.2007 at 6.15 p.m. However, it is not understandable as to when the case sheet at Ex.P17 would have met the need of respondent no.3-Insurance Company to rebut the case of the claimant, it was not at all warranted in summoning MLC extract. But, by summoning the production of MLC register at Ex.R1 it has shown that there is one more version in respect of the history of the alleged accident in question recorded by the very same hospital authorities. That being the case when there are two documents showing divergent history of the accident, then weightage may have to be given to the one which has come into existence at the first point of time. There are no documents to show that MLC register at Ex.R1 has come at a later date or at a later time. It is for the reason that though in the said MLC register it is mentioned that the intimation to the police was sent on 20.04.2007 but nowhere it is mentioned as to when the said MLC register was recorded and more particularly was it recorded on 20.04.2007 i.e. subsequent to preparation of case sheet.
On the other hand, RW.1-Doctor of the very same hospital has stated in his examination-in-chief itself that whenever in the hospital they receive any patient with injury under road traffic accident, first of all they get it registered in MLC register and thereafter they immediately intimate to the concerned police. That means, when a patient is brought with the history of road traffic accident, the very first act what they do is to register the case details in MLC before proceeding to do any further thing. As such, it can be inferred that even in the case on hand, the moment injured was brought or injured went to Bapuji Hospital, Davanagere, it was the MLC register that was made first before preparation of case sheet as per Ex.P17. Secondly, the author of the case sheet at Ex.P17 has also not been examined. Whereas RW.1 himself has produced the MLC extract as an authenticated document maintained by the hospital.
Even though PW.2 who is also a Doctor from the very same hospital has spoken about the case sheet at Ex.P17, but nowhere in his evidence he has stated as to who recorded the history of injured in the said case sheet. On the other hand, PW.2 also in his cross- examination admitted the suggestion as true that while admitting the patient in respect of MLC cases in their hospital, concerned officials will get recorded the particulars of such injury in the MLC register and other register and case sheet. By admitting the said suggestion, witness has corroborated the evidence of RW.1 that MLC will be prepared first when the injured patient with the road traffic accident will be brought to their hospital. As such, in the instant case also, when the MLC at Ex.R1 and case sheet at Ex.P17 are laid side by side, evidence of PW.2 and RW.1 makes it clear that due weightage has to be given to MLC with respect to the alleged history of the accident. That being the case, the Tribunal which has taken a contrary view and giving more emphasis to Ex.P17 ignoring the MLC register, has to be necessarily termed as not a correct deduction to be deduced in the facts of the case.
14. Added to the above, undisputedly, a criminal case has already been filed against respondent no.1 for the alleged rash and negligent driving causing the accident in question. A copy of the FIR at Ex.P1, a copy of the information sent to the police at Ex.P2, a copy of further statement at Ex.P3 and a copy of final report at Ex.P6 are the documentary evidence produced by the claimant in that regard. The final report filed by the police which is at Ex.P6 is also against respondent no.1-driver accusing him of committed an offence punishable under Sections 279 and 338 of IPC. Thus, evidence of PW.2 corroborated by the documentary evidence produced from the claimant’s side as well as the evidence of RW.1 and the document at Ex.R1 leads to draw an inference that the claimant has proved that the accident in question has occurred solely due to rash and negligent driving of the vehicle bearing registration no.KA-17/W-1076 by its alleged driver. That being the finding, the impugned judgment wherein the Tribunal has answered issue no.1 in the negative and consequently dismissed the claim petition deserves to be set aside and the matter requires to be remanded to the Tribunal to proceed further in the matter for answering other issues which it has not answered and in the light of the finding with respect to issue no.1 given by this Court.
Accordingly, the appeal is allowed in part. The judgment and award dated 10.08.2010 passed by the Court of the Senior Civil Judge and MACT IX, Harapanahalli in MVC No.138/2009 is set aside. The matter is remanded to the Tribunal with a direction to dispose of the claim petition afresh from the stage of main arguments from both side and in accordance with law. Both the parties are directed to appear before the Tribunal without anticipating any notice afresh from it on 10th June 2019 at 11.00 a.m.
Registry to send a copy of this judgment along with LCR to the Tribunal without any delay.
Sd/- JUDGE hkh.