Karnataka High Court
Venkateshbabu Naik vs Manjunatha K on 22 July, 2024
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NC: 2024:KHC:28380-DB
MFA No. 423 of 2024
C/W MFA No. 4905 of 2023
MFA No. 5520 of 2023
AND MFA No.218 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
MISCELLANEOUS FIRST APPEAL NO.423 OF 2024 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.4905 OF 2023(MV-I)
MISCELLANEOUS FIRST APPEAL NO.5520 OF 2023(MV-I)
MISCELLANEOUS FIRST APPEAL NO.218 OF 2024(MV-I)
IN M.F.A. NO.423 OF 2024
BETWEEN:
SHESHANAIKA S/O. JAYARAMANAIKA,
AGED ABOUT 28 YEARS,
R/AT ANUPANAHALLI THANDA,
KASABA HOBLI, SIRA TALUK,
TUMKUR DISTRICT-572137.
Digitally ...APPELLANT
signed by (BY SMT. SOWMYA R., ADVOCATE)
REKHA R
Location: AND:
High Court
of 1. MANJUNATHA K. S/O. KRISHNAPPA,
Karnataka AGED ABOUT 51 YEARS,
R/AT KEREYAGALAHALLY, NADURU POST
GOWDAGERE HOBLI, SIRA TALUK-572139,
(OWNER OF THE MAHINDRA VAN
BEARING NO.KA-04-D-0184)
2. SRIRAM GENERAL INSURANCE CO. LTD.,
NO.392, 3RD FLOOR, S AND S CORNER BUILDING,
PLOT NO.48, HOSPITAL ROAD, SHIVAJINAGARA,
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NC: 2024:KHC:28380-DB
MFA No. 423 of 2024
C/W MFA No. 4905 of 2023
MFA No. 5520 of 2023
AND MFA No.218 of 2024
NEAR BOWRING HOSPITAL, BENGAURU-560051,
REPRESENTED BY THE MANAGER.
(POLICY NO.10003/31/18/691681)
...RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R2
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO MODIFY AND ENHANCE THE JUDGMENT AND
AWARD DATED 24.03.2023 PASSED BY THE SENIOR CIVIL
JUDGE AND ADDL. MACT AT SIRA IN MVC NO.1231/2018 IN
THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A. NO.4905 OF 2023
BETWEEN:
THE BRANCH MANAGER,
M/S. SRIRAM GENERAL INSURANCE COMPANY LTD.,
NO.302, 3RD FLOOR,
S AND S CORNER BUILDING,
PLOT NO.48, HOSPITAL ROAD,
SHIVAJINAGARA,
NEAR BOWRING HOSPITAL,
BENGALURU-560051.
NOW REPRESENTED BY ITS,
THE BRANCH MANAGER,
M/S. SHRIRAM GENERAL INSURANCE COMPANY
LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE,
DEVARACHIKKANAHALLI ROAD,
BANNERUGHATTA MAIN ROAD,
IIMB POST, BENGALURU,
REPRESENTED BY ITS ASSISTANT MANAGER.
...APPELLANT
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE)
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NC: 2024:KHC:28380-DB
MFA No. 423 of 2024
C/W MFA No. 4905 of 2023
MFA No. 5520 of 2023
AND MFA No.218 of 2024
AND:
1. SRI. SHESHANAIKA S/O. JAYARAMANAIKA,
AGED ABOUT 26 YEARS,
R/AT ANUPANAHALLI THANDA,
KASABA HOBLI, SIRA TALUK,
TUMAKURU DISTRICT.
2. SRI. MANJUNATHA K. S/O. KRISHNAPPA,
AGED ABOUT 50 YEARS,
R/AT KEREYAGAHALLY NADURU POST,
GOWDAGERE HOBLI, SIRA TALUK,
TUMAKURU DISTRICT.
...RESPONDENTS
(BY SMT. SOWMYA R., ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
24.03.2023 PASSED BY THE SENIOR CIVIL JUDGE AND
A.M.A.C.T. AT SIRA IN MVC NO. 1231/2018 BY ALLOWING THE
APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A. NO.5520 OF 2023
BETWEEN:
THE BRANCH MANAGER,
M/S. SHRIRAM GENERAL INSURANCE COMPANY LTD.,
NO.302, 3RD FLOOR, S AND S CORNER BUILDING,
PLOT NO.48, HOSPITAL ROAD,
SHIVAJINAGARA, NEAR BOWRING HOSPITAL,
BENGALURU-560051.
NOW REPRESENTED BY ITS
THE BRANCH MANAGER,
M/S SHRIRAM GENERAL INSURANCE COMPANY LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE,
DEVARACHIKKANAHALLI ROAD,
BANNERUGHATTA MAIN ROAD,
IIMB POST, BENGALURU,
REPRESENTED BY ITS ASSISTANT MANAGER.
...APPELLANT
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NC: 2024:KHC:28380-DB
MFA No. 423 of 2024
C/W MFA No. 4905 of 2023
MFA No. 5520 of 2023
AND MFA No.218 of 2024
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE)
AND:
1. SRI. VENKATESHBABUNAIKA
S/O. LATE VENAKTANAIKA,
AGED ABOUT 26 YEARS,
R/AT. MUDIGERE KAVAL,
KASABA HOBLI, SIRA TALUK,
TUMAKURU DISTRICT.
2. SRI. MANJUNATHA K.
S/O. KRISHNAPPA,
AGED ABOUT 50 YEARS,
R/AT KAREYAGAHALLY NADURU POST,
GOWDAGERE HOBLI, SIRA TALUK,
TUMAKURU DISTRICT.
...RESPONDENTS
(BY SMT. SOWMYA R., ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
24.03.2023 PASSED BY THE SENIOR CIVIL JUDGE AND
AMACT, AT SIRA, IN MVC NO.1223/2018 BY ALLOWING THIS
APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A. NO.218 OF 2024
BETWEEN:
VENKATESHBABU NAIK
S/O. LATE. VENKATANAIK,
AGED ABOUT 33 YEARS,
R/AT MUDIGERE KAVAL,
KASABA HOBLI, SIRA TALUK,
TUMKUR-572137.
...APPELLANT
(BY SMT. SOWMYA R., ADVOCATE)
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NC: 2024:KHC:28380-DB
MFA No. 423 of 2024
C/W MFA No. 4905 of 2023
MFA No. 5520 of 2023
AND MFA No.218 of 2024
AND:
1. MANJUNATHA K. S/O. KRISHNAPPA,
AGED ABOUT 45 YEARS,
R/AT KEREYAGALAHALLY, NADURU POST,
GOWDAGERE HOBLI, SIRA TALUK-572139
(OWNER OF THE MAHINDRA VAN
BEARING NO.KA-04-D-0184)
2. SRIRAM GENERAL INSURANCE CO. LTD.,
NO.302, 3RD FLOOR, S AND S CORNER BUILDING,
PLOT NO. 48, HOSPITAL ROAD, SHIVAJINAGARA,
NEAR BOWRING HOSPITAL, BENGALURU-560051.
...RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY AND ENHANCE THE JUDGMENT AND
AWARD DATED 24.03.2023 PASSED BY THE SENIOR CIVIL
JUDGE AND ADDL. MACT AT SIRA IN MVC NO.1223/2018 IN
THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MS JUSTICE J.M.KHAZI
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NC: 2024:KHC:28380-DB
MFA No. 423 of 2024
C/W MFA No. 4905 of 2023
MFA No. 5520 of 2023
AND MFA No.218 of 2024
ORAL JUDGMENT
(PER: HON'BLE MS JUSTICE J.M.KHAZI) These Miscellaneous First Appeals are arising out of the common judgment and award passed by the Senior Civil Judge and A.M.A.C.T. Sira ('The Tribunal' for short) in MVC Nos.1231 and 1223 of 2018, whereby the claim petitions filed by the petitioners for compensation came to be partly allowed directing the respondent No.2 insurance company to pay the same.
2. While MFA No.4905/2023 and MFA.No.5520 of 2023 are filed by respondent No.2-insurance company challenging its liability, MFA No.218/2024 and MFA.No.423/2024 are filed by the claimants seeking enhancement.
3. Since these appeals are arising out of a common judgment and award, in respect of the same accident, they are clubbed together and decided by a common judgment.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
4. For the sake of convenience, parties are referred to by their ranks before the Tribunal.
5. So far as the petitioners are concerned, they are referred to as petitioner with their names suffixed, wherever necessary.
6. It is the case of the petitioners that, on 19.08.2018, at about 8.00 a.m., in order to go to Baraguru village of Sira Taluk to lift the electric poles, petitioner-Sheshanaika started from Anupanahalli Thanda on his motorcycle bearing Reg.No.KA-14/ED-0660 ('motorcycle' for short), petitioner-Venkateshbabu Naik and their common friend Gangadhar joined him at Sira. The motorcycle was driven by the petitioner-Sheshanaika. Petitioner- Venkateshbabu Naik and Gandadhar were his pillion riders. At 10.00 a.m., they came to P.N.Halli cross on Sira-Amarapura road. At this point, a Mahindra Goods vehicle bearing Reg.No.KA-04/D-0184 ('offending vehicle' for short), driven by its driver in a rash or negligent -8- NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 manner came from the opposite direction. Without giving any signal, the driver of the offending vehicle suddenly took turn on the left side and dashed against the motorcycle.
7. As a result of the accident, both petitioners sustained grievous injuries. Immediately they were taken to the Community Health Centre, Sira and after preliminary treatment, on the advice of the doctor, they were shifted to Hemavathi Orthopedic and Trauma Centre, Tumkur. Despite prolonged treatment, petitioners are not completely cured. The injuries sustained by them have resulted in permanent partial disability affecting their earning capacity. Respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle and both of them are jointly and severally liable to pay the compensation and hence, the petitions. -9-
NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
8. Despite service of notice and appearance through counsel, respondent No.1 not filed written statement.
9. Respondent No.2 filed written statement disputing the involvement of the offending vehicle in the alleged accident. It is being falsely implicated to claim compensation from respondent No.2. At the time of the alleged accident, petitioner-Sheshanaika and pillion riders were not wearing helmet. They have sustained injuries due to fall from the motorcycle on their own negligence. Riding of the motorcycle with two pillion riders contributed to the accident. After three days of the alleged accident, the offending vehicle is being implicated to claim compensation by twisting the facts and in collusion with the concerned police. At the time of the alleged accident, the driver of the offending vehicle was not possessing valid driving license. Intentionally, immediately after the alleged accident, the complaint is not filed. The owner of the offending vehicle and the concerned police have not
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 complied with the mandatory provisions of Sections 134(c) and 158(6) of the Motor Vehicles Act, 1988. Respondent No.2 denied that accident occurred due to the rash and negligent driving of the offending vehicle.
10. Alternatively, respondent No.2 disputed the age, occupation, income of the petitioners and the nature of the injuries sustained and that the said injuries have resulted in permanent partial disability affecting income of the petitioners. The compensation claimed is highly exorbitant and without any basis. In the event of granting compensation, petitioners are not entitled for any interest on future medical expenses and loss of future prospects and sought for dismissal of the petitions.
11. Based on the pleadings, the Tribunal framed necessary issues.
12. Since these two petitions arose out of common accident, the Tribunal clubbed the petitions.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
13. Petitioner-Sheshanaika is examined as PW-1, petitioner- Venkateshbabu Naik is examined as PW-2. Dr.Prasad Murugappa Gowda who treated both the petitioners is examined twice as PWs-3 and 4. Exs.P1 to 47 are marked.
14. On behalf of the respondents, RWs-1 and 2 are examined and Exs.R1 to 6 are marked.
15. Vide impugned judgment and award, the Tribunal partly allowed the claim petitions, granted compensation in a sum of Rs.16,32,121/- to petitioner- Sheshanaika and Rs.4,87,791/- to petitioner- Venkateshbabu Naik and directed respondent No.2 to pay the same along with interest at the rate of 6% p.a.
16. Aggrieved by the impugned judgment and award, respondent No.2 filed the appeals contending that the same is contrary to law, facts, probabilities of the case and the evidence on record. The Tribunal failed to consider the defence of respondent No.2 and also the fact that it
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 sought permission under Section 170 of M.V.Act to take all the defence available to the owner of the offending vehicle. The accident took place on account of the negligence of the petitioner-Sheshanaika as he was carrying two pillion riders and lost control. The driver of the offending vehicle was not possessing valid driving license. The driver and owner of the offending vehicle not produced valid driving license in order to seek indemnification. The offending vehicle was not also possessing fitness certificate and it amount to violation of the terms and conditions of the policy and therefore, the impugned judgment and award is perverse.
16.1 Alternatively the compensation granted under the different heads is on the higher side. The disability considered by the Tribunal is also on the higher side and calls for interference by this court.
17. The petitioners have filed appeals contending that the income of the petitioners is considered at the
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 lower side. Consequently, the compensation granted is also on the lower side and requires interference by this court.
18. We have heard elaborate arguments of both sides and perused the records.
19. At the outset, it is relevant to note that even though respondent No.2 admit that the offending vehicle is covered by a valid policy issued by it, it has taken a specific defence that the offending vehicle is not at all involved in the accident. Either it is a case of self fall from the motorcycle or it is a case of some other vehicle involved and in order to easily recover the compensation from respondent No.2 - insurance company, in collusion with the owner of the offending vehicle, it is being implicated. In support of this contention, respondent No.2 has also claimed that immediately after the alleged accident, neither the concerned police nor respondent No.1 have brought the said fact to the notice of
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 respondent No.2 - insurance company and by filing a belated complaint, the offending vehicle is implicated.
20. Since it is not a case of death, the driver of the offending vehicle would also escape by pleading guilty and paying fine. Further respondent No.2 claimed that the offending vehicle was not having a valid permit to ply the vehicle on the road and the driver of the offending vehicle was also not possessing a valid driving license and on this ground also respondent No.2 is not liable to indemnify respondent No.1. Respondent No.2 also taken a defence that according to the petitioners at the time of alleged accident, three persons including the petitioners were traveling on the motorcycle. They were also not wearing helmet. Because of this the accident occurred and they have contributed to the cause of the accident. Without examining these aspects in the right perspective, the Tribunal erred in fixing the liability on respondent No.2.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
21. Alternatively, respondent No.2 claimed that the compensation granted by the Tribunal is highly disproportionate to the injuries sustained by the petitioners and it requires interference, in case this Court comes to the conclusion that, in fact offending vehicle is involved and that respondent No.2 is liable to pay the compensation.
22. Of course, the petitioners are seeking enhancement of the compensation on the ground that their income considered by the Tribunal is on the lower side.
23. In the light of the specific defence taken by respondent No.2 that it is a fraudulent claim, at the outset it is necessary to examine whether the petitioners have proved that they have sustained injuries in a motor vehicle accident involving the offending vehicle. Only if this question is answered in the Affirmative, then it would be necessary to examine the other issues.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
24. According to the petitioners, the accident took place on 19.08.2018 at around 10.00 a.m. At the time of accident, petitioners along with one Gangadhar were proceeding on the motorcycle. It was ridden by petitioner Sheshanaika. It is also the case of petitioners that though they sustained grievous injuries, Gangadhar did not suffer any such injuries requiring treatment. Immediately, they were taken to community health Centre (Govt hospital) Sira and after preliminary treatment they were taken to Hemavathi Orthopedic and Trauma Centre, Tumakuru. They have contended that the Doctors of Government Hospital Sira have sent MLC report. It is pertinent to note that along with petitioners, Gangadhar, was traveling on the motorcycle. He is an eye witness to the accident. He did not suffer such injuries requiring treatment. He was available to file the complaint, immediately at the earliest available opportunity. Neither petitioners nor the said Gangadhar choose to file the complaint.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
25. Even though it is claimed that the Doctors at Government Hospital, Sira have sent MLC report, the copy of the said report is not produced. If at all MLC report was sent to the concerned police reporting that injured persons are involved in the medico legal case certainly the concerned police would have approached the petitioners and based on their statements would have registered the case against the driver of the offending vehicle. No such thing has happened, creating doubt as to whether in fact, it is a case of road traffic accident involving the offending vehicle.
26. At this stage, it would be relevant to examine whether the Doctors of Government Hospital, Sira have sent any MLC report intimating the fact of alleged road traffic accident requiring the concerned police to initiate action against the wrong doer. Ex.P24 is the accident registration extract of the entry pertaining to petitioner- Sheshanaika. It is dated 19.08.2018 at 10.40 a.m and reads as under:
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 "RTA on 19.8.2018 at 9.45 a.m was pillion rider bike and two wheeler at Pattanayakahalli Cross sustained injuries "
27. Ex.P35 is the accident registration extract of the entry pertaining to petitioner Venkateshbabu Naik. The entry is dated 19.08.2018 at 11.00 a.m. It reads as under:
"RTA on 19.08.2018 as previous case by Sheshanaika "
28. These entries are made at the earliest available opportunity and it is based on the statements of petitioners who were taken to the hospital. These entries indicate that petitioner Sheshanaika was also pillion rider and the accident involved two motorcycles i.e, one is referred to as a bike and the other as two wheeler. The cause of injuries sustained by petitioner Venkateshbabu Naik is also as that of Sheshanaika. These entries does not state the involvement of any four wheeler vehicle let alone the offending vehicle.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
29. It is relevant to note that Ex.P12 is the OPD ticket prepared at the casualty of Government Hospital, Sira wherein the information is fed into the computer and print out taken for the use of the Doctor who examined the patient. As per this document the date and time of registration is 19.08.2018 at 10:44:57 a.m. While noting the patient type, it is stated as 'NON-MLC'. However in the body of the document, the medical officer has noted the details and that it is History of RTA in hand. He has also noted in the printed portion with his hand as MLC. Admittedly, no MLC report was sent to the concerned police.
30. During the course of his evidence, the Doctor who treated the petitioners at Hemavathi Orthopedic and Trauma Centre, Tumkur and who is examined as PWs-3 and 4, time and again stated that the MLC was sent by Government Hospital, Sira. The petitioners have not produced certified copy of the MLC report stated to have been sent by Government Hospital, Sira, taking either
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 from the said Hospital or from the concerned police. The petitioners have also not summoned the original records of the said hospital to ascertain whether any such MLC report was infact sent to the concerned police.
31. As noted earlier, if at all the Doctors at Government Hospital, Sira had sent MLC report the concerned police would have certainly contacted the petitioners or at least their relatives and recorded the statements of the injured or atleast taken complaint from the Gangadhar, who was the other pillion rider and registered the case. Having regard to the contents of Exs.P12, 24, 35, 36 and 45, such MLC report even if it is in existence would have been contrary to the case of the petitioners and therefore it appears it has been suppressed or no such MLC was sent as it is noted as a case of Non MLC.
32. Ex.P36 is the case sheet of petitioner Sheshanaika produced by PW-3 Dr Prasad M.Gowda.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 Similarly Ex.P45 is the case sheet of petitioner Venkateshbabu Naik produced by him when he is again examined as PW-4. In both these documents, in the printed form as to whether it is a case of MLC or Nil MLC, the MLC is struck out, indicating that it is a case of Nil MLC. Afterwards, in handwriting separately mentioned as MLC. This also indicate that initially it was noted as Nil MLC and later to help the petitioners, it was written in handwriting as MLC.
33. In Ex.P26 discharge summary pertaining to petitioner Venkateshbabu Naik, the relevant column MLC is ticked indicating that it is a medico legal case. However, in the case sheet at Ex.P45 pertaining to him, the copy of discharge summary is available at page 155. However, the relevant column as to whether it is MLC or non-MLC is not ticked. In Exs.P36 and 45, which are case sheets of Hemavathi Orthopedic and Trauma Centre, pertaining to both petitioners, it is stated that it is history of road traffic accident and MLC is done at Sira Government Hospital.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
34. Now coming to the complaint filed in respect of the accident in question. Ex.P2 is the complaint. It is lodged on 21.08.2018 at 8.00 p.m i.e, after lapse of nearly two and half days that too by Jayaram Naika - the father of Sheshanaika. Admittedly, he is not an eye witness to the incident. According to him, he received the information of accident telephonically. In the complaint, he states that Gangadhar was also injured and taking treatment in Government Hospital and Sheshanaika and Venkateshbabu Naik are shifted to Hemavathi Nursing Home, Tumakuru. He has also stated that he came to know that the accident was caused by vehicle bearing registration number KA-04- D-0184. From the manner in which he has affixed his signature indicate that in all probabilities, the complainant is not literate and he got the complaint written through somebody else.
35. In the complaint, it is not disclosed from whom the complainant came to know the registration number of the vehicle, which caused the accident. The petitioners
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 have not chosen to examine either Jayaram Naika who filed the complaint or Gangadhar, who is an eye witness to the incident.
36. Ex.P9 is the charge sheet. In the charge sheet, Sheshanaika, Venkateshbabu Naik, Gangadhar are cited as CWs-2 to 4. In addition to them, CW-5 Yogaraj is cited as an eye witness. The petitioners have produced further statement of complainant Jayaram Naika, statements of Petitioner Sheshanaika, petitioner Venkateshbabu Naik and Yogaraj. For the reasons best known to them, petitioners have not produced the statement of Gangadhar, who was allegedly travelling with them on the motor cycle. In his further statement, the complainant has stated that the accident was witnessed by CW-5 Yogaraj who is working in a hotel situated at the place where the accident has taken place and with his help, he had shifted the injured to the hospital and came to know the registration number and name of the driver of the offending vehicle from him.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
37. Of course in their statements given to the police, the petitioners have stated that later they came to know the name and registration number of the offending vehicle. In his statement given to the police CW-5 Yogaraj stated that he is having a hotel at Pattanayakanahalli Cross, where the alleged accident took place. He has stated that the father of Sheshanaika came to the spot and took the injured to the Hospital in 108 ambulance and after the injured were taken in the ambulance, he observed that the accident was caused by Mahindra goods mini vehicle bearing registration No.KA-04-D-0184 and it's driver was one Devaraj, Son of Krishnappa of Kereyagalahalli, Sira Taluk. He has not stated whether the driver of the offending vehicle left the offending vehicle at the spot or took it away.
38. However, in the charge sheet, it is also alleged that the driver of the offending vehicle sped away from the place of incident in the offending vehicle without getting
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 the injured treatment and also failed to intimate the concerned police about the accident.
39. If immediately after the accident, the driver of the offending vehicle sped away from the spot, the witness and more particularly, CW5-Yogaraj had no opportunity to know the registration number and also the details of the driver as stated in his statement to the police. The examination of CW4-Gangadhara and CW5-Yogaraj would have clarified as to what actually transpired, whether in fact, the offending vehicle is involved and it stopped after the accident or driven away, and whether the witnesses had sufficient time to see the driver and registration number of the offending vehicle. This fact assumes importance in the light of the fact that in the FIR, it is stated that the driver of the offending vehicle did not stop to get treatment to the injured and also failed to inform the police about the accident and sped away. The petitioners have failed to adduce the best evidence
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 available and assist the Court to arrive at the correct conclusion.
40. On the other hand, the evidence placed on record by the petitioners is doubtful regarding the involvement of the offending vehicle.
41. As rightly pleaded by respondent No.2, immediately, after the accident, neither respondent No.1 being the owner nor the police have brought the fact of the alleged accident to the notice of respondent No.2-the insurer of the offending vehicle as required under section 134(c) and 158 of Motor Vehicles Act, 1988. Respondent No.1 has also failed to produce the vehicle and vehicle documents for the verification by respondent No.2 - Insurance Company. Had the accident occurred involving the offending vehicle, this would have been the natural conduct of respondent No.1, being the owner and the Jurisdictional police. Very conveniently respondent No.1- owner of the offending vehicle has not chosen to file
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 written statement, either admitting or denying the involvement of the offending vehicle in the accident. This also creates doubt as to the involvement of the offending vehicle in the accident and indicate that in all probability, respondent No.1 was colluded with the petitioners to enable them to recover compensation from respondent No.2.
42. The trial Court without examining these aspects simply proceeded to hold respondent No.2 liable to pay the compensation on the ground that the driver of the offending vehicle is charge sheeted. It is true that respondent No.2 not challenged the charge sheet. Since the owner of the offending vehicle is colluding with the petitioners, he and driver of the offending vehicle have also not challenged the charge sheet. However, based on the records, the Tribunal as well as this Court are at liberty to examine whether prima facie, the claim of the petitioners is fraudulent.
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024
43. The Tribunal has not chosen to examine the evidence placed on record in right perspective, and in a routine manner, proceeded to hold that the accident was caused by the driver of the offending vehicle and since it is covered by the policy issued by respondent No.2, directed it to pay the compensation. However, on re-examination of the evidence placed on record in right perspective, we are of the considered opinion that this is a fraudulent claim made against respondent No.2, and as such, the petition is liable to be dismissed without examining the other issues and accordingly, the following;
ORDER
(i) MFA No.218/2024 and MFA.No.423/2024 filed by the petitioners are dismissed.
(ii) MFA No.4905/2023 and MFA.No.5520/2023 filed by respondent No.2-Insruance Company are allowed.
(iii) Consequently, judgment and award in MVC No.1231/2018 and MVC.No.1223/2018
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NC: 2024:KHC:28380-DB MFA No. 423 of 2024 C/W MFA No. 4905 of 2023 MFA No. 5520 of 2023 AND MFA No.218 of 2024 dated 24.03.2023 on the file of the Senior Civil Judge and A.M.A.C.T. at Sira is set aside.
(iv) In the result, MVC No.1231/2018 and MVC.No.1223/2018 dated 24.03.2023 on the file of the Senior Civil Judge and A.M.A.C.T. at Sira are dismissed.
(v) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith.
Sd/-
(SREENIVAS HARISH KUMAR) JUDGE Sd/-
(J.M.KHAZI) JUDGE MBS/RR List No.: 1 Sl No.: 14