Karnataka High Court
Sharanajee vs Mohana And Anr on 9 August, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC-K:6309
MFA No. 201461 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO. 201461 OF 2019 (MV-I)
BETWEEN:
SHARANAJEE S/O RAJGOPAL,
AGE:39 YEARS, OCC:CHICKEN VENDOR,
R/O SHAKAVADI VILLAGE,
TQ. & DIST. RAICHUR-584 102.
...APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. MOHANA S/O GOPALA,
AGE:MAJOR,
OCC:OWNER OF MOTOR CYCLE
NO.KA.36/EF-4898, R/O H.NO.2-75,
SAGAMKUNTA VILLAGE,
TQ. & DIST.RAICHUR-584 102.
2. THE BRANCH MANAGER
Digitally signed
by SACHIN
THE NEW INDIA ASSURANCE CO. LTD.,
Location: HIGH
COURT OF
ICICI LOMBARD, HOUSE NO.414,
KARNATAKA
K.K. COMPLEX, RAICHUR-584 101.
POLICY NO.68060131140100001662
VALID FROM 22-10-2014 TO 21-10-2015.
...RESPONDENTS
(BY SRI.RAHUL R. ASTURE ADVOCATE FOR R2;
R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 17.08.2017 PASSED BY THE II
ADDL. DIST. AND SESSIONS JUDGE AND ADDL. M.A.C.T. AT
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NC: 2023:KHC-K:6309
MFA No. 201461 of 2019
RAICHUR IN MVC NO. 572/2015, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated 17.08.2017 passed by II Additional District and Sessions Judge and Additional MACT at Raichur, (for short 'tribunal') in MVC.no.572/2015, this appeal is filed.
2. Shri Basavaraj R. Math, learned counsel for appellant submitted that on 06.10.2015, claimant was riding pillion on motorcycle bearing registration no.KA- 36/EF-4898, sustained grievous injuries when rider rode it in rash and negligent manner at Yeramarus, Raichur road and went over speed breaker in high-speed near Basvanna temple, Shaktinagar causing accident. It was submitted that immediately after accident, claimant got himself admitted to Dhanvantri hospital at Raichur by traveling in a private Auto from accident spot. Upon admission at hospital, he was given inpatient treatment which included -3- NC: 2023:KHC-K:6309 MFA No. 201461 of 2019 surgery. It was submitted that when claimant was in hospital his statement was recorded by Police in pursuance of MLC intimation given by hospital and based on said statement at Ex.P2 - complaint, Ex.P1 - FIR was registered. It was submitted that in Crime details form at Ex.P3, presence of offending vehicle at accident spot was noted at time of inspection. It was submitted that said vehicle belonging to respondent no.1 was insured with respondent no.2 and respondent no.1 - rider was having valid and effective driving licence. Therefore, respondent no.2 - insurer would be liable to pay compensation to claimant.
3. It was submitted that in accident, claimant sustained compression fracture of L1 with para paresis with no control over bowel and bladder movement which were grievous and therefore dismissal of claim petition by tribunal was not justified.
4. Insofar as reference to date of accident in Ex.P4
- wound certificate, it was submitted that entire treatment -4- NC: 2023:KHC-K:6309 MFA No. 201461 of 2019 records of Dhanvantri hospital, Raichur, recorded date of admission as 06.10.2015. Consequently, incorrect mentioning of date in Ex.P4 was apparently due to inadvertence and merely on ground of said inconsistency ignoring all other medical documents were consistent insofar as date of accident as 06.10.2015, rejection of claim petition would not justified.
5. Learned counsel also sought to rely upon treatment case sheet of claimant issued by Dhanvantri hospital, Raichur, which though was not got marked would indicate that date of admission of claimant was 06.10.2015. It was submitted that said material would iron out inconsistency. It was further submitted that PW-2 doctor from Dhanvantri hospital itself was examined in corroboration of claimant's case and under above circumstances, impugned award called for interference. Considering facts and circumstances, learned counsel sought for passing of appropriate award. -5-
NC: 2023:KHC-K:6309 MFA No. 201461 of 2019
6. On other hand, Shri Rahul R. Asture, learned counsel for respondent no.2 - insurer sought to support award. It was submitted that Ex.P5 - Motor Vehicle Inspector's report admittedly did not record any damages sustained by motorcycle even though as per claimant's version, accident occurred when motorcycle was plying in high-speed and speed breakers lost control and fell down. Such accident would have caused damage to motorcycle. It was submitted that considering undisputed fact that owner of motorcycle was a close relative of claimant, possibility of planting insured vehicle for purposes of claim was high and inconsistency between date of accident in Ex.P4 and from other medical records would fortify said doubt. Under circumstances, in absence of clarification offered by claimant insofar as inconsistent evidence, judgment and award passed by tribunal was just and proper and did not call for interference.
7. Heard learned counsel, perused impugned judgment and award and also record.
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NC: 2023:KHC-K:6309 MFA No. 201461 of 2019
8. From above submission, occurrence of accident and claimant sustaining injuries therein are not in dispute. While claimant seeks to contend that accident occurred due to rash and negligent riding of insured motorcycle by its rider and therefore, insurer was liable to pay compensation and mere inadvertent inconsistency regarding date of accident in one document as against consistent medical evidence in others ought not to have resulted in dismissal in claim petition; insurer, an other hand contends that on fortified suspicion of planting of insured vehicle, claim petition is dismissed and same was fully justified.
9. In view of above contentions, point that arises for consideration is:
"Whether award passed by tribunal calls for interference?"
10. In order to establish occurrence of accident and involvement of insured vehicle, claimant has produced FIR, Complaint, Crime Details Form, Wound certificate, -7- NC: 2023:KHC-K:6309 MFA No. 201461 of 2019 MVI report, Charge-sheet and Certified copy of order sheet in Criminal case marked as Exs.P1 to P7 respectively. He has also produced medical records such as Discharge card, Disability certificate, Medical bills, Prescriptions, X-ray film as Exs.P8 to P13 respectively.
11. On perusal of Ex.P1 - FIR, it is seen that case is registered on 07.10.2015 at 6:30 p.m. based on Ex.P2 - complaint recorded in hospital at 6:30 p.m. on 07.10.2015. It is mentioned in Ex.P2 - complaint that on receipt of Medico Legal Case intimation at 6:00 p.m., on 07.10.2015, complaint was received and after entering same in case dairy, FIR was registered. Ex.P3 - Crime Details Form is seen to be drawn on 08.10.2015 between 8:00 and 9:00 a.m. While Ex.P5 - Motor Vehicle Inspector's report was drawn at 3:40 p.m. on 08.10.2015. Indeed Ex.P6 - Charge-sheet is filed against rider of motorcycle and as per Ex.P7 - Order sheet in criminal case, he has pleaded guilty, but same would not be material documents insofar as date and time of occurrence -8- NC: 2023:KHC-K:6309 MFA No. 201461 of 2019 of accident. Ex.P8 - Discharge card issued on 13.10.2015 contains overwriting on date of admission. 05.10.2015 appears to be overwritten as 06.10.2015. Similarly, even in Ex.P9 - Disability certificate, there is overwriting on date of accident.
12. Though Ex.P11 and other medical bills, prescriptions etc., do not indicate any transaction prior to 06.10.2015, Ex.P4 - Wound certificate issued on 29.10.2015 clearly mentions date of accident as 04.10.2015 and date of examination of claimant/injured on 05.10.2015 at 7:15 p.m. Said wound certificate is signed Dr.Shubash S. Patil, who is examined as PW-2. In his examination-in-chief, PW-2 has not stated anything about inconsistency or erroneous entry in Ex.P4 - Wound certificate. Even PW-1 - claimant has not offered any explanation regarding same. Admittedly, wound certificate is first document to be recorded immediately after accident and would play significant role insofar as occurrence of accident, injuries sustained etc. -9- NC: 2023:KHC-K:6309 MFA No. 201461 of 2019
13. From contents of compliant and deposition, there is dispute about owner of motorcycle being close relative of claimant. Under above circumstances, in absence of a clear explanation regarding inconsistency in Ex.P4, omission has to be treated as material. Under such circumstances conclusion of tribunal cannot be stated to be contrary to evidence on record. Therefore, there are no justifiable reasons to differ with view taken. Hence, points for consideration is answered in negative.
Consequently, appeal is dismissed.
Sd/-
JUDGE GRD List No.: 1 Sl No.: 29