Karnataka High Court
Noorbasha S/O Subhan Sab vs Shafiullah on 17 August, 2021
Bench: B.Veerappa, M.G.S. Kamal
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF AUGUST 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR.JUSTICE M.G.S. KAMAL
MFA No.102642/2015 (MV)
Between:
Noorbasha S/o.Subhan Sab,
Age 24 years, Occ: Labour,
R/o.Choranuru village, Sandur Taluk,
Dist: Ballari, Now at Cowl Bazar, Bellari.
... Appellant
(By Shri R.H.Angadi, Advocate)
And:
1. Shafiullah S/o.Khasimsab.P.M,
Age major, Occ: Driver,
R/o.Choranur village,
Sandur Taluk, Dist: Ballari.
2. Nazeer Basha S/o.Mohaboob Subhani,
Age 27 years, Occ: Owner of the Motorcycle,
R/o.1st Ward, R/o.Choranur village,
Sandur Taluk, Dist: Ballari.
3. The Divisional Manager,
M/s.Oriental Insurance Co. Ltd.,
Ballari.
... Respondents
(By Shri J.M.Anilkumar, Advocate for R-1 & 2,
Smt.Preethi Shashank, Advocate for R-3)
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This Appeal is filed u/s 173(1) of MV Act, 1988 against
the Judgment and Award dt.26.03.2015 passed in MVC
No.838/2013 on the file of the Member, MAC-II, Ballari,
dismissing the claim petition filed u/s.166 of MV Act.
This appeal being heard and reserved for Judgment,
coming on for pronouncement of Judgment, this day,
M.G.S. Kamal, J, delivered the following:
JUDGMENT
1. This appeal under Section 173(1) of the Motor Vehicles Act, 1956 (for short 'the Act') is filed by the claimant against the Judgment & Award dated 26.03.2015 passed in MVC No.838/2013 on the file of the Member, MACT-II, Bellary (for short 'the Tribunal') for dismissing the claim petition.
2. The brief facts of the case leading upto the filing of this appeal are that the claimant was traveling as a pillion-rider along with respondent No.1 on a motorcycle bearing Registration No.KA-35/W-9098 on 26.03.2013 at about 6.15 p.m. from Choranuru villge to Tumbaraguddi village. The respondent No.1 being the rider of the motor- cycle drove the same in a rash and negligent manner, lost control over the motorcycle, as a result both the claimant :3: and the respondent No.1 fell into a ditch. Due to the impact, the claimant sustained grievous injuries in the nature of fracture to his right hand, right fore-arm, right shaft humorous and sustained injuries all over the body. That the claimant took treatment at a private hospital, Kudligi and thereafter at VIMS Hospital, Ballari, wherein his right-hand was amputated and incurred huge amount towards medical expenses.
3. Thereupon, the claimant filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation in a sum of Rs.32,00,000/- together with costs and interest at the rate of 24% p.a. from the date of the accident till realization contending inter alia that the claimant was hale and healthy prior to the accident and was earning Rs.450/- per day as labourer/coolie. Due to the rash and negligent riding of the motorcycle by the respondent No.1, resulting in the accident causing grievous injuries to the claimant consequently amputating his right hand has drastically reduced his functional ability. Hence, sought for compensation.
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4. Upon service of notice, Respondent No.1, the rider of the motorcycle and the respondent No.2, the owner of the motorcycle appeared before the Tribunal. Respondent No.2 filed statement of objections and the respondent No.1 filed a memo adopting the statement of objections filed by the respondent No.2. Respondent No.2 in his statement of objections denied the allegations made in the petition and his liability to pay the compensation. It is further pleaded that the vehicle was insured with the respondent No.3-Insurance Company and the compensation, if any, to be awarded to the claimant, the respondent No.3 would be liable to pay the same. Hence, sought for dismissal of the petition against them.
5. The respondent No.3 appeared and filed the statement of objections denying the petition averments. A specific defence was set up denying the involvement of the motorcycle and claimant sustaining injury in the alleged road traffic accident. Besides, contending that the belated filing of the complaint was only for the purposed of claiming compensation. That the complaint was filed at belated :5: stage only to claim compensation. Hence, sought for dismissal of the petition.
6. The Tribunal based on the pleadings, framed the issues and recorded the evidence of the parties. The claimant examined himself as PW1 and also examined the Dr. Srinivas as PW2 and got exhibited 46 documents marked as Exs.P1 to P46. No evidence has been led in on behalf of the respondents except marking of a copy of Insurance Policy as Ex.R1.
7. The Tribunal on appreciation of the oral and documentary evidence made available has held that the claimant failed to prove that he sustained injuries on 26.03.2013 in a road traffic accident involving the motorcycle bearing registration No.KA-35/W-9098 and consequently dismissed the petition. Aggrieved by the same, the present appeal is filed by the appellant-claimant.
8. Heard the learned counsel appearing for the parties.
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9. The learned counsel for the appellant submitted that the Tribunal erred in not appreciating the fact that the Police after registering the case had conducted investigation and had submitted the charge sheet against the respondent No.1-rider of the motorcycle. The respondent No.1 and the respondent No.2, owner of the motorcycle had not challenged the said charge sheet submitted by the Police. That the Tribunal failed to appreciate the fact that the Doctor had given a report that the injuries sustained by the claimant was in a road traffic accident. That the Tribunal grossly erred in dismissing the claim petition merely on the ground of delay of 15 days in registration of the complaint without appreciating the fact that the claimant had been admitted as inpatient and was unable to lodge the complaint in time. That the conclusion arrived at by the Tribunal was erroneous and without appreciating the material evidence made available and was thus liable to be set aside.
10. On the other hand, the learned counsel for the Insurance Company submitted that even if there was a :7: delay in filing the FIR, there is no material to support the claim of the claimant having suffered injuries in the road traffic accident. That as per the medical records the claimant had sustained the injuries due to the self fall in the house and not in the road traffic accident. Thus he submitted that the conclusion arrived at by the Tribunal cannot be found fault with. Hence, sought for dismissal of the appeal.
11. In view of the rival contentions urged by the learned counsel for the parties, the issue that would arise for our consideration is:
"Whether the Tribunal is justified in dismissing the petition on the premise of delay in filing the FIR and that the claimant failed to prove that he sustained injuries on 26.03.2016 in a road traffic accident involving the motorcycle bearing registration No.KA-35/ W-9098?"
12. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the records carefully.
13. The Tribunal at paragraph No.10 of the impugned judgment has held as under:
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"10. On perusal of Ex.P1-FIR, the same was lodged on 11.4.2013 there is an inordinate delay of more than 15 days in filing the compliant. At the time of filing of the compliant as per Ex.P2 only it was alleged that the petitioner sustained injuries to his right arm due to Road Traffic Accident involving a motorbike bearing Reg. No.KA-35/W-9098. So, it is only based on the FIR, the police have conducted investigation and submitted charge sheet, alleging offences punishable u/Ss. 279, 337 and 338 of IPC. Here the petitioner did not examine the Investigating Officer who had submitted the charge sheet and who had conducted the investigation, to prove the alleged accident and he sustained any injuries. Ex.P7 is the wound certificate issued on 27.06.2013 without disclosing the history of injuries. So. Ex.P7 has no evidentiary value in this case. The petitioner admits that he took treatment as inpatient at VIMS Hospital, Ballari and did not disputes the inpatient records marked at Exs.P8 to 17. So, Exs.P8 to 17 are the interior documents which discloses the nature of the injuries sustained by the petitioner as self inflicted injuries due to self fall inside the house by the petitioner. No rebuttal evidence is produced by the petitioner to rebut the entries made in Exs.P8 to 17. So, it is very much clear that the petitioner by taking the advantage of his fall in his house and sustaining of fracture, then made an after thought to file a complaint as if he sustained injuries in Road Traffic Accident. So, despite the FIR and other documents produced by the petitioner to show that he sustained injuries in Road Traffic Accident, the inpatient records clearly discloses initially that the petitioner sustained injuries only due to a fall in the house and not in Road Traffic Accident. So, if at all the petitioner really sustained any such injuries in Road Traffic Accident, certainly he would have :9: filed a complaint immediately or else he would have given information before the hospital authorities to the effect that he has sustained injuries only in Road Traffic Accident. So, the petitioner has utterly failed to prove that he sustained injuries on 26.03.2013 in Road Traffic Accident with involvement of the motorbike bearing Reg. No.KA-35/W-9098. Accordingly I treat issue No.1 in negative."
Having held as above, the Tribunal proceeded to dismiss the petition.
14. The Apex Court in the case of RAVI Vs. BADRINARAYAN AND OTHERS reported in (2011)4 SCC 693 has held that the delay in lodging the FIR cannot be a ground to doubt the claimant's case in genuine cases, in Indian conditions, it is not expected that a person would to rush to Police station after accident, treatment of victim is given priority over lodging the FIR, Kith and kin of the victim are not expected to act mechanically with promptitute in lodging the FIR. Hence, the delay in lodging the FIR is not a ground to dismiss the claim petition in view of Section 154 of the Cr.P.C., 1973. Further, the Apex Court in the case of MANGLA RAM VS. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS reported : 10 : in (2018)5 SCC 656 has held that the proceedings under the Act has to be decided on the basis of preponderance of probabilities and the claimant is not required to prove the accident beyond reasonable doubt.
15. In view of the aforesaid legal principles, it is necessary to re-appreciate the material available on record. It is the case of the claimant that on 26.03.2016 at about 6:15 p.m., he was proceeding as a pillion rider along with the respondent No.1 who while riding the motorcycle lost control and thereby both the claimant and respondent No.1 fell into a ditch, resulting in grievous injuries to the claimant. That initially he was treated at the private hospital and thereafter admitted to VIMS Hospital, Ballari on 29.03.2018. On 31.03.2013, claimant had undergone procedure for amputation of his right arm above the elbow. The claimant was thus treated in the said hospital upto 04.05.2013. That the claimant had filed the complaint on 11.04.2013 while he was still in the hospital.
16. The documents which refer to the injuries sustained by the claimant following road traffic accident : 11 : (RTA) on account of fall from the bike is Ex.P8, Summary Sheet (Admission Record issued by VIMS, Hospital, Ballari), wherein over the page No.58 at column Pre-Anesthetic Instruction, it is noted as "H/O A/E amputation 15 days back after injury to ® forearm following RTA" and also over the page No.59 wherein it is noted as "H/O self fall from bike". However, in the discharge summary at Ex.P9, dated 04.05.2013 (page No.63), there is a noting as "H/O self fall at home". Ex.P10 at page No.64, though there is noting of "H/O of self fall at home", there is a seal affixed indicating "MEDICO LEGAL CASE". Except mentioning "self fall at home" in the discharge summary at page No.63 which is subsequent to entry in pre-anesthetic column at page 59 and at Ex.P10 page No.64, there is no other reference with regard to self fall at home. Thus an omnibus statement of finding by the tribunal as extracted hereinabove referring to Exs.P8 to P17, purportedly indicating self inflicted injuries cannot be accepted. The tribunal does not appear to have appreciated the contents of Exs.P8 to P17 as noted above.
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17. In the instruction form while obtaining the special consent for amputation at page No.66 of Ex.P9, the statement of the claimant has been recorded which is extracted hereunder:
"I have sustained injury to right arm on 29.03.2013 by self fall for which I had taken treatment from an osteopath where I was treated with massages and light bandage. After 2 days I lost sensations over entire right upper and kipt ove forearm blackened with blood and severely of entire limb. I was shifted to VIMS, Bellary, I was explained in my own understandable language that my right upper limb has become non-functional due to compartment syndrome and gangrenes stances have started. I full understand that if not amputated I my depend sepals which may be life there hanky. All options have been explained to me and I give my consent for amputation of right upper limb."
Thumb impression of the claimant has been obtained on the above statement.
18. Complaint with regard to the accident was filed before the Gudekote P.S. on 11.04.2013 which was registered in Crime No.26/2013 in which the claimant has stated that while he was proceeding with respondent No.1 on motorcycle, the respondent No.1 lost control over the motorcycle and fell into a ditch. The said complaint is prior : 13 : to the date of discharge summary at Ex.P9 dated 04.05.2013.
19. A charge sheet at Ex.P3 has been filed by the Gudekote P.S. against respondent No.1 under Section 279, 337, 338 of IPC read with Section 183 of M.V. Act, 1988. The MVA report at Ex.P6 refers the damages to head light doom and, side view mirror of the vehicle. Thus, the aforesaid material would probablise that the claimant having met with a road traffic accident.
20. It is to be noted that right from the reference of "injury from RTA", "self fall from a bike" as found over the page Nos.58 and 59, and in the complaint filed on 11.04.2013, there is consistency in the statement of the claimant with regard to his fall from the motorcycle due to rash and negligent riding of the motorcycle by respondent No.1. A charge sheet has been filed confirming the accident as per Ex.P3.
21. The other material evidence coupled with the FIR, Charge Sheet and the connected documents thereon : 14 : probabalise the claimant falling from the motorcycle and sustaining grievous injuries.
22. Merely because of entry in the discharge summary dated 04.05.2013 Ex.P9 and in Ex.P10 (with a seal indicating MEDICO LEGAL CASE thereon" with regard to history of "self fall at home" which is subsequent to the lodging of the complaint and the finding of the Tribunal extracted herein above, cannot be sustained.
23. In view of the law laid down by the Hon'ble Apex Court in the case of RAVI Vs. BADRINARAYAN AND OTHERS (supra), delay in lodging the FIR cannot be a ground to doubt the claimant's case in genuine cases. The appreciation of the evidence by the Tribunal is therefore incomplete and in view of the aforesaid analysis, we are of the considered opinion that the matter has to be remitted to the Tribunal for reconsideration of the material evidence on merits. Yet another reason for our conclusion to remit the matter is that the Tribunal has not assessed the disability and compensation payable to the claimant. Even : 15 : for this reason, the matter requires to be remitted to the Tribunal.
24. For the aforesaid analysis, we pass the following:
ORDER
(i) The appeal is allowed.
(ii) The Judgment & Award dated 26.03.2015 passed in MVC No.838/2013 on the file of the Member, MACT-II, Bellary is set aside.
(iii) The matter is remitted to the Tribunal for fresh consideration.
(iv) The parties are directed to appear before the Tribunal on 06.09.2021 without expecting further notice from the Tribunal.
(v) The Tribunal shall afford opportunity to the parties to lead further evidence and to cross examine the witness, if any.
The parties shall cooperate in
expeditious disposal of the matter
without seeking any adjournment.
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(vi) It is made clear that, we have not
expresses anything on the merits of the case. The tribunal shall consider the matter afresh and pass necessary order in accordance with law within a outer limit of 6 months from the date of receipt of the certified copy of this order.
(vii) The Registry to send back the records forthwith to the Tribunal.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE Vnp*