IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous first Appeal No.2775 OF 2010 (MV) Between:
SRI S.RAJENDRA AGED ABOUT 39 YEARS, SON OF SHAMMANNA, RESIDING AT TARABANAHALLI, CHIKKAJALA POST, BENGALURU NORTH TALUK ... APPELLANT (BY SRI G.NAGARAJULU NAIDU ADVOCATE) And:
1. SRI N.S.RAGHURAM SON OF N.K.SAMPATH KUMAR, MAJOR, NO.1/1, 2ND FLOOR, 2ND CROSS, RAMACHANDRA, AGRAHARA, CHAMARAJPET, BENGALURU – 560 018 2. M/S.ORIENTAL INSURANCE CO. LTD., D.O.VI, SRINIVASA MANSION, NO.364/1, 10TH ‘B’ MAIN, 3RD BLOCK, JAYANAGAR, BENGALURU – 560 011 ... RESPONDENTS (BY SRI M.SOWRI RAJU, ADVOCAE FOR R2; NOTICE TO R1 IS HELD SUFFICIENT V/O. DATED 24.03.2014) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 03.11.2009 PASSED IN MVC. NO.531/2007 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE AND MACT., BENGALURU (SCCH- 17), DISMISSING THE PETITION FOR COMPENSATION.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the claimant in MVC No.531/2007 on the file of the Motor Accident Claims Tribunal, Bengaluru (SCCH-17) (for short, the Tribunal). The appeal is taken up for final disposal with the consent of the learned counsel for the parties.
2. The claimant’s claim petition under Section 166 of the Motor Vehicles Act, 1988, is rejected by the Tribunal by its impugned judgment dated 03.11.2009 holding that the claimant is unable to prove that he suffered injuries in a road accident on 05.07.2006 involving the motor cycle bearing registration No.KA-05- R-663 owned by the respondent No.1 and insured with the respondent No.2.
3. The claimant asserted that he was hit by the motorcycle bearing registration No. KA-05-R-663 on 05.07.2006 at about 2.30 pm when he was crossing the road near Tarabanahalli Gate on NH-7 and that the rider of this motorcycle was rash and negligent. He was hospitalised with Raj Mahal Villas hospital where he had to undergo surgery and his lower right limb was put on cast for about three months. Therefore, he could not file information about the accident with the jurisdictional police immediately after the accident or at the time of discharge from the hospital. However, when he regained mobility, he lodged the information about the accident with the jurisdictional police at the first opportunity. The claimant in support of his petition examined himself as PW.1 and the Doctor who treated him as PW.2, and he also marked in his evidence different documents which include FIR, Mahazars, Wound Certificate and Discharge Summary. The Insurer, who denied the involvement of the motor cycle, did not lead any evidence.
4. The Tribunal, while answering the Issue No.1 which required the claimant to prove that he was involved in road accident caused by the rider of the motorcycle, has concluded that the claimant is not able to prove the same. The Tribunal has refused to accept the reliance on information lodged with the jurisdictional police by the claimant on 29.10.2006 i.e., after about 3½ months from the date of the accident, because of the delay in lodging such information. The Tribunal has also concluded that the police record is replete with errors and they create serious doubt about the manner in which the accident is alleged to have taken place.
5. The learned counsel for the appellant argued in support of the appeal contending that the Tribunal should have examined the explanation offered by the claimant. The claimant has stated that he had to undergo surgery and his right lower limb, even at the time of lodging information with the police, was under cast. He was immobilised for over three months and therefore, he could not file complaint in time. These circumstances are corroborated by the Wound Certificate and the Discharge Summary marked as Exs.P7 and P8. The Tribunal has not considered these documents in the right perspective.
6. There is no dispute that the claimant lodged information about the accident with the jurisdictional police after about 3½ months therefrom. This information to the police, far moved from the date of accident, would be tenuous evidence. Therefore, the claimant should place on record such unimpeachable evidence from which it could be reasonably inferred that the claimant was indeed injured in an accident involving the motorcycle. The claimant, other than his own testimony, has relied upon the medical records viz., the Wound Certificate and the Discharge Summary. However, these documents do not refer to the vehicle number involved in the accident. In fact, the Discharge Summary only records that the claimant was brought to the hospital with complaints of bleeding wound over right leg and unable to move right ankle following RTA at 2.30pm on 05.07.2006, hit by a bike. The MLC Register, which would have been a crucial piece of evidence is also not brought on record. The claimant’s case that he was injured in the accident when the motorcycle bearing registration No.KA-05-R-663 hit him, is not substantiated by the medical records. The claimant except for stating that his right leg was put on cast and therefore, he could not file information about the accident with the Police, has not placed on record any reason as to why some from amongst his family members could not lodge the information about the accident with the police, or some strong reason to explain the delay. As such, in the considered opinion of this Court even the oral testimony does not inspire confidence. The Tribunal’s appreciation of evidence is neither perverse nor irregular.
Accordingly, the appeal is dismissed.
KPS Sd/- Judge