Karnataka High Court
Santhosh vs Madhu R M on 3 September, 2022
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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MFA No. 10508 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.10508 OF 2012(MV-I)
BETWEEN:
1. SANTHOSH
S/O BASAVARAJAPPA
AGED ABOUT 21 YEARS
R/O MAHADEVAPURA VILLAGE
BELAVANURU POST, DAVANAGERE TALUK
PIN CODE-577 001.
...APPELLANT
[BY SRI. PRAKASHA H C .,ADVOCATE (PH)]
AND:
1. MADHU R M
S/O RATTIHALLI MALLESHAPPA
AGED ABOUT 34 YEARS
R/O THARALABALU NAGARA
BELAVANURU POST, DAVANAGERE TALUK
PIN CODE-577 001.
2. THE MANAGER
NATIONAL INSURANCE CO LTD.,
Digitally signed by OPP TO BAPUJI MEDICAL COLLEGE
GURURAJ D DAVANAGERE-577 001.
Location: High ...RESPONDENTS
Court of Karnataka
(BY SRI. O.MAHESH, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13.07.2012 PASSED IN MVC
NO.447/2011 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE,
MACT-III, DAVANAGERE, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 10508 of 2012
JUDGMENT
Challenging dismissal of claim petition vide judgment dated 13.07.2012 passed in MVC No.447/2011 by II Addl. District & MACT, III, Davanagere, ( for short 'Tribunal') this appeal is filed by appellant.
2. Brief facts as stated are that on 20.11.2010 at about 9 P.M. claimant was pillion rider on motorcycle bearing no.KA-17-EC-5890. When it was near Reliance petrol bunk, Avaregere village, rider of motorcycle was riding in rash and negligent manner, failed to control near speed breakers. Due to which rider fell down and sustained injuries. Claimant also sustained severe injuries to his left leg and other parts of body. He was initially taken to C.G. Hospital Davanagere and thereafter to SSIMS Hospital and Research Centre, Davanagere. Despite taking inpatient treatment for about 84 days, he did not recover fully. Alleging loss of earning capacity due to same, he filed claim petition against owner and insurer of motorcycle.
3. Despite service of summons owner did not contest claim, he was placed ex-parte.
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4. Respondent no.2 filed objections disputing claim petition as false. Specific objection was raised that insured vehicle was not involved in accident and it was due to own negligence of claimant, hence sought for dismissal of claim petition.
5. Based on pleadings, tribunal framed following issues:
1. Whether petitioner prove that alleged accident was occurred on 20.11.2010 at about 9 p.m. On a public road near Reliance Petrol Bunk of Avaragere due to rash and negligent riding of motor cycle bearing Reg.No.KA-17-EC-5890 by respondent no.1 and that he has sustained severe injuries and the same have caused him permanent disablement?
2. Whether respondent no.2 proves that petitioner has sustained injuries due to his own negligence as stated in para-4 of the written statement?
3. Is petitioner entitled for compensation? If so, at what and from whom?
4. What order or award?
6. Thereafter claimant examined himself as PW.1 and another witness as P.W.2. Exhibits P.1 to P.124 were marked. On behalf of respondents, Dr. Drakshayini was examined as RW.1 and an official of insurer as RW.2. Exhibits R.1 to 3 were marked.
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7. On consideration, tribunal answered issue no.1 partly in affirmative and partly in negative; issue no.2 in affirmative; issue no.3 in negative and issue no.4 by dismissing claim petition. Aggrieved thereby, claimant is in appeal.
8. Sri. Prakasha H.C., learned counsel for claimant/appellant submitted that judgment and award passed by tribunal was contrary to facts and evidence on record. It was submitted that accident occurred on 20.11.2010 around 9 p.m. Since claimant sustained serious injuries and was under
treatment, complaint was lodged on next day i.e., 21.11.2010 at 8.45 p.m. In complaint insured vehicle was clearly implicated. Thereafter police conducted investigation. Motor Vehicle Inspector inspected vehicle on 23.11.2010 and submitted report noting damages caused to motorcycle bearing KA-17-EC-5890.
9. In wound certificate - Ex.P.5, date of accident was shown as 20.11.2010 and history was shown as road traffic accident. Learned counsel also drew attention of this Court to charge sheet - Ex.P.6 filed by police after investigation. Ex.P.6 reveals that due to rash and negligent driving of rider of motorcycle, police filed charge sheet against respondent no.1. -5- MFA No. 10508 of 2012 It was submitted that ignoring said evidence, tribunal erroneously dismissed claim petition, hence sought for allowing appeal.
10. On other hand, Sri. O Mahesh, learned counsel for insurer supported impugned judgment and award and opposed appeal. He submitted that insurer had taken specific objections regarding non-involvement of insured vehicle in accident and also alleged negligence of claimant himself. To substantiate same, insurer had examined one of it's official as RW.2 and also Dr. Drakshayini as R.W.1, working at C.G. hospital, Davanagere, who had issued Ex.P.5 - wound certificate. Insurer had got marked Ex.R.1 - MLC register, which clearly indicated that accident was due to 'self fall'. Therefore, tribunal was justified in dismissing claim petition.
11. From above submission, occurrence of accident on 20.11.2010 and claimant sustaining injuries were not in dispute. On appreciation of evidence, tribunal held that accident was due to own negligence of claimant and dismissed claim petition. Claimant is in appeal contending that accident was due to rash and negligent riding of motorcycle by its rider and -6- MFA No. 10508 of 2012 since claimant was proceeding as pillion he was not entitled for compensation.
12. In view of above, only point that arise for consideration is:
"Whether impugned judgment and award passed by tribunal call for interference?"
13. While dismissing claim petition, tribunal referred to averments made in claim petition and contents of police investigation records namely FIR, complaint, charge sheet, Motor vehicle inspector's report, wound certificate marked as Exs.P.1 to P.6 and referred to MLC register extract - Ex.R.1 to arrive at conclusion that accident occurred due to own negligence of claimant.
14. From deposition of PW1 - claimant it is seen that during course of examination insurer has elicited admission that immediately after accident, claimant was taken to CG Hospital, Davanagere. He also admits that manner of occurrence of accident was explained by him to doctor.
15. On perusal of Ex.P.2 - complaint, it is seen that claimant has stated that vehicle involved in accident was Bajaj -7- MFA No. 10508 of 2012 Pulsar and motorcycle toppled down. However, damages noted by M.V. Inspector marked at Ex.P.4, which reads as under:
"1. Front right side indicator damaged, rear left side indicator damaged.
2. Head light mast scratched
3. Crash guard right side damaged."
16. At outset, damages caused to motorcycle noted by M.V. Inspector do not match gravity of accident as stated by complaint. Further Ex.R.1 - MLC register clearly mentions history of accident as due to road traffic accident on 20.11.2010, 'self fall' while riding Pulsar.
17. During cross-examination, claimant has not made any suggestions to RW.1 disputing Ex.R.1 as not being correct extract. There is no explanation forthcoming with regard to entries in it either. Ex.R.1 further reveals that claimant was taken to hospital by Lingaraju H.S. However, said Lingaraju is neither examined as a witness nor any explanation offered for not examining him. Yet another entry which would probablise contention of respondent/insurer is that respondent no.1 - rider of motorcycle conveniently remained ex-parte. -8- MFA No. 10508 of 2012
18. While arriving at conclusion, tribunal has examined contents of Ex.R.1 - MLC register and on due appreciation of same, held that accident occurred due to own negligence of claimant while riding motorcycle and on that ground disallowed claim. I do not find any justification to interfere with same. Hence, point for consideration is answered in negative. In the result, I pass following:
ORDER Appeal is dismissed with costs.
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JUDGE Psg*