Karnataka High Court
Mahadevi W/O Late Siddanna Sajjan vs Devindra @ Devindrappa S/O Shekappa ... on 17 March, 2020
Author: Krishna S Dixit
Bench: Krishna S.Dixit
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
MFA No.31112/2010 (MV)
Between:
Smt. Mahadevi W/o Late Siddanna Sajjan
Age: 57 Years
Occ: Agriculture
R/o Aralagundagi
Tq. Jevargi, At present at Village
Sagar (B), Tq. Shahapur, Dist. Yadgir
... Appellant
(By Sri S.V. Paraddey, Advocate)
And:
1. Devindra @ Devindrappa
S/o Shekappa Talwar
Age: 30 Years, Occ: Driver
R/o Okonasirasgi
Tq. Jewargi, Dist. Gulbarga
2. Vishwanath S/o Mahadevappa
Kachapur, Age: 29 Years
Occ: Agriculture
Owner of Vehicle No.KA-32-A-4012
R/o Kukanoor
Tq. Jewargi, Dist. Gulbarga
3. The United India Insurance Co. Ltd.
No.25, Shankar Narayan Building
2
M.G. Road, Bangalore
Through its Divisional Manager
United India Insurance Co. Ltd.,
Dr. Jawali Complex, Super Market
Gulbarga
... Respondents
(By Sri S.S. Aspalli, Advocate for R3;
Notice to R1 served;
Notice to R2 held sufficient V.O.Dtd. 11.07.2019)
This MFA is filed under Section 173 (1) of Motor
Vehicle Act, 1988, praying to set aside the judgment and
award dated 17.04.2010 passed in MVC No.493/2009 by the
Civil Judge (Sr.Dn.) & XII Addl. MACT, Shorapur and allow
the claim petition filed by the appellant and award
compensation against the respondent No.1 to 3 jointly and
severally.
This appeal coming on for Hearing this day, the court
delivered the following:-
JUDGMENT
This appeal by the claimant lays a challenge to the judgment & award dated 17.04.2010 entered by the XII Addl. MACT, Shorapur ('MACT', for short) whereby her claim petition in MVC No.493/2009 has been dismissed.
2. After service of notice, respondent No.1 - Driver has chosen to remain unrepresented; the respondent No.2 - Owner of the insured vehicle too 3 despite notice by paper citation has chosen to remain unrepresented; respondent No.3 - Insurer having entered appearance through it's Senior Panel Counsel opposes the appeal making submission in justification of the impugned judgment & award.
FACTS IN BRIEF:
a) In a vehicular accident that allegedly happened on 17.07.2008 at about 5.00 p.m. in Kurnalli Village, the claimant sustained grievous injuries for which he was treated as an in-patient. Her claim petition in MVC No.493/2009 was resisted by both the insurer and the insured by filing Written Statements.
b) To prove the claim, the appellant herself got examined as P.W.1; Dr. Vithoba Ghawalkar who had issued the Disability Certificate was examined as P.W.2, one Mr. Manappa who claimed to be an eyewitness to the incident was examined as P.W.3. From the side of appellant in all 93 documents as per Exs.P1 to 93 came 4 to be marked; these documents comprised of Police Papers, Medical Records, IMV Report, Driving Licence etc.
c) From the side of the opponents, three persons were examined; Mr. Venugopal, an officer of the Insurance Company was examined as R.W.1, The Sub-
Inspector of Police - Mr. Shivappa who had investigated the offence was examined as R.W.2; the owner of offending vehicle, Mr. Vishwanath was examined as R.W.3; in their evidence in all three documents came to be marked as per Exs.R.1 to 3 namely, Copy of Insurance Policy, Driving Licence & Registration Certificate Book.
d) The MACT after perusing pleadings of the parties and the depositions given by the witnesses and after adverting to documentary evidence on record has entered the impugned judgment and award rejecting the 5 claim for compensation. The same is put in challenge by the appellant.
3. Having heard the learned counsel for the parties and having perused the appeal papers and LCR in original, this Court declines to grant indulgence in the matter for the following reasons:
a) The MACT, a statutory body having the advantage of accumulated wisdom in such matters has recorded the findings after due consideration of the evidentiary material that the version of claimant as to happening of the accident and consequent sustaining of injuries is not true; learned counsel for the appellant took this Court through the original LCR and even then no case is made out for interfering with the findings recorded by the MACT.
b) The accident allegedly happened on 17.07.2008 in the presence of claimant's grandson, 6 namely, Mr. Mallikarjun, who is not examined as a witness although the jurisdictional police had examined him as C.W.4; no explanation is offered for not examining either; thus the non-examination of a star witness is significant; similarly, the claimant was carried to the hospital in Vijayapura on 19.07.2008 by her son Mr. Basavaraj who was examined by the Police as C.W.5; however, he too was not examined from the side of claimant; nor any explanation is offered for such non-examination; thus, this too is a significant lapse, that counts against the claimant.
c) The accident happened on 17.07.2008; the nature of injuries which the claimant asserted to have suffered could not have permitted her to remain at home with the country-treatment at the hands of the villagers; either Mr. Mallikarjun or Mr. Basavaraj could have lodged the FIR, if the claimant was really disabled 7 by injuries as is sought to be made out; this did not happen; the claimant who underwent treatment in a hospital at Vijayapura was discharged on 25.07.2008, whereas the FIR has been lodged on 13.08.2008; at least soon after the discharge, either the claimant or her son or the grandson could have lodged the FIR, but even that too did not happen; thus, there is inordinate delay in lodging the FIR, which has not been properly accounted for.
d) The learned counsel for the claimant vehemently argued that the delay in lodging the FIR is insignificant especially when the claimant was injured and hospitalized; he also contended that the Police after thorough investigation have filed a charge-sheet which apparently goes to show that the version of the claimant is true. The contention of the claimant side cannot be countenanced when there is a wealth of material on record, which militates against the stand of the 8 claimant. His reliance on the decision of the Apex Court in Ravi v. Badrinarayan & Ors., 2011 AIAR (Civil) 396 does not come to his aid; delay per se is not bad, is true; but an explanation is owed for brooking delay.
e) The Sub-Inspector of Police who was examined as R.W.2 has stated that he had seized the offending vehicle on 23.08.2008; the Inspector of Motor Vehicles is alleged to have examined the vehicle on 22.08.2008 going by Ex.P.5, which mentions such examination having taken place in the Police Station premises; if the vehicle was seized on 23.08.2008, how is that the Inspector of Motor Vehicles could conduct its examination in the Police Station a day before it's seizure remains an unanswered mystery; although the counsel for the claimant vehemently argued about the possible mistake in recording the correct dates, such a stand was not taken before the MACT and therefore 9 such a contention now taken before this Court does not gain acceptance.
f) The respondent - Insurer has made allegation against Sub-Inspector of Police who was examined as R.W.2 as having manipulated filing of a fraudulent claim; even this Police official has not explained in his evidence as to how the Inspector of Motor Vehicles could conduct the examination of the offending vehicle a day before the said vehicle was seized. It is on record that the vehicle was allegedly brought to the Police Station on seizure only on 23.08.2008, even going by the version of Police; nothing prevented the claimant from summoning the RTO records and from examining the Inspector of Motor Vehicles for establishing the correct date of inspection; this having not been done, the same gives credence to the version of the Insurer that there is a thick ring of doubt in the story of claimant.
10
4. The learned counsel for the claimant lastly banked upon the "plead guilty order" made by the Criminal Court wherein the driver of the offending vehicle being the accused had pleaded guilty; the counsel for the claimant vehemently argues that the plead guilty order amounts to admission in a claim petition and a confession in the criminal case, and therefore the same lends credence to the version of the claimant; ordinarily this contention would have merited acceptance in the absence of other weighty material that runs repugnant to the stand taken by the claimant; after all Section 31 of the Evidence Act states that an admission is not a conclusive proof; though the Evidence Act is not applicable, there is no reason why this general principle enacted in the Section should be ignored; it is more so because the insurer has specifically made allegation against the Sub-Inspector of Police who was examined as R.W.2; therefore much milk 11 cannot be derived from the "plead guilty order" as rightly contended by the learned counsel for the Insurance Company; this is more so when the owner of the insured vehicle who was examined as R.W.3 before the MACT too repelled the case of the claimant side.
In the above circumstances, this appeal being unworthy of merits stands dismissed.
No costs.
Sd/-
JUDGE BL