Karnataka High Court
Mr Siddachari vs Mr. Umesh N on 30 September, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.5325/2011 (MV)
BETWEEN:
Mr. Siddachari,
S/o Sri.Rachachari,
Aged about 43 years
Residing at Lakshmipura Village,
Kasaba Hobli,
Mysore Taluk. ... Appellant
(By Sri.Rahul Carriappa, Advocate for M/s Kamal &
Bhanu, Associates, Advocates)
AND:
1. Mr. Umesh N,
S/o Nanjundaiah
Aged about 34 years
Residing at Door No.3582,
5th Cross, 2nd Main,
Thilaknagar
Mysore.
(Owner cum Driver of the Maruthi
Omni Car bearing Reg.No.KA-09-N-9572)
2. ICICI Lombard General Insurance
No.204, Mythri Arcade,
Kantharaja Urs Road,
Mysore. ... Respondents
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(By Sri.B.Pradeep, Advocate for R-2;
Sri. Sudarshan, Advocate for R-1)
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 04.11.2010
passed in MVC No.1041/2009 on the file of the I
Additional District Judge, MACT, Mysore dismissing the
claim petition for compensation.
This Appeal coming on for Orders this day, the
Court delivered the following:
JUDGMENT
This is a claimant's appeal questioning the legality and correctness of judgment and award passed by MACT, Mysore in MVC No. 1041/2009 dated 4.11.2010 whereunder claim petition filed under Section 166 of Motor Vehicle Act has been dismissed with costs.
2. Claim petition under Section 166 of Motor Vehicles Act, 1988 was filed by appellant - claimant contending interalia that on 14.03.2007 at about 1.00 p.m., he was waiting for the bus in front of Naguvanahalli Gate on Bangalore-Mysore Highway Road to proceed to Chandagalu Hosur village and at that time 3 a Maruti Omni Car bearing registration No.KA-09-N- 9572 driven in a rash and negligent manner, dashed against petitioner and on account of said impact, he sustained grievous injuries and was shifted to General Hospital, Srirangapatna and after being administered first-aid treatment, he has been shifted to K.R.Hospital, Mysore and as such, he contended that on account of injuries sustained, he suffered disability and as such, he sought payment of compensation of Rs.12,60,000/-. Insurer appeared and contested the matter by filing detailed statement of objections denying averments made in the claim petition. First respondent also filed statement of objections denying averments made in the claim petition. On evaluation of entire evidence tendered by parties and after considering the pleadings, Tribunal has dismissed the claim petition on the ground that claimant has failed to prove alleged occurrence of the accident.
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3. I have heard the arguments of Sri Rahul Cariappa appearing on behalf of appellant-claimant and Sri Pradeep, learned Advocate appearing for respondent-
2. Respondent-1 is served and represented. However, none is present on behalf of respondent-1.
4. Having heard the learned Advocates appearing for parties and on perusal of judgment and award in question as also records secured from Tribunal, I am of the considered view that contentions raised by Sri Rahul Cariappa, learned Advocate appearing for appellant-claimant that Tribunal has not taken note of jurisdictional Magistrate having taken cognizance of the charge sheet filed against driver of the offending vehicle and said fact ought to have been swayed in the mind of Tribunal to hold that accident in question had occurred, cannot be accepted for reasons more than one as it would unfold hereinbelow. 5
5. At the outset, it requires to be noticed that in the claim petition, appellant contended that he was hit by a Maruti Omni car and as such, he was shifted to General Hospital, Srirangapatna. If it is so, nothing prevented the claimant to summon the medical records from the said hospital or produce certified copy of medical records of said hospital. Same has not been produced. This is first stage which arises suspicion about doubtful claim of the claimant. Subsequently, claimant contends that he was shifted to K.R.Hospital, Mysore for higher treatment. The case sheet of the said hospital has been produced and marked as Ex.P-25 (collectively). Perusal of the case sheet relating to the entry made on the date of admission on 14.03.2007 would indicate as under:
"H/o - has fall on 14.03.2007 at about 1.00 p.m. near Hosur."6
Claimant as such, was being treated at the K.R. Hospital, Mysore as can be seen from case sheet Ex.P-
25. In the case sheet dated 18.03.2007 it has been recorded that claimant has stated before the doctor that he has requested the Doctors to treat his case as MLC case and an affidavit has been given to the said effect. Unit head has placed the matter by making necessary entry to the resident Medical Officer. There is one more entry on 16.03.2007 in the case sheet where attendant of the patient (claimant) has stated before the Doctor that claimant was hit by a car. When he was under
treatment on 29.03.2007, he has absconded from the hospital. It has been reported by the Unit head to resident Medical Officer in the case sheet history itself. Claimant has again come back on 30.03.2007 i.e., next day and has requested to continue treatment. These entries made in the case sheet would clearly indicate that there is serious doubt with regard to accident. That apart, Ex.P-25 would indicate that claimant himself has admitted at the time of his admission to K.R.Hospital 7 that he had a self fall and as such, he sustained injuries and medical records do not indicate that either he has lost conscious or other parameters being abnormal, so as to doubt the contents of Ex.P.25. Hence, assertion of the claimant cannot be brushed aside.
6. It would be appropriate to note the decision in the case of NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION vs GOURABAI AND OTHERS reported in 2009(15) SCC 165 whereunder Apex Court has held that when the records would establish as to how injury has been sustained, it ought not to be ignored by the Courts and Tribunals. Hence, when contents of Ex.P-25 is taken into consideration namely, entries found in a the case sheet, contention of the claimant that he sustained injuries in a road traffic accident cannot be accepted. In fact, Tribunal on appreciation of entire evidence has proceeded to dismiss the claim petition since claimant has utterly failed to establish that he sustained injuries in the accident in 8 question and merely because jurisdictional police have investigated the case after complaint was filed belatedly i.e., after 8 days from the date of accident, would not be a ground to discard the very statement made by claimant himself as to how he sustained injuries.
7. In fact, co-ordinate Bench of this Court in the case of BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED vs HARISH KUMAR (MFA NO.4446/2010 disposed of on 06.01.2012) and ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED vs LAKSHMAMMA & OTHERS (MFA NO.3375/2010 disposed of on 06.01.2012) has held that this Court has to take note of the contents of medical records available which would indicate the manner in which injury was sustained by claimant.
8. Undaunted by dismissal of claim petition by Tribunal, claimant has pursued his grievance before this Court. Since claimant has utterly failed to establish 9 that he has sustained injuries in a road traffic accident and his own statement would indicate that it was a self fall on account of which he sustained injuries, he would not be entitled to any compensation whatsoever. In fact, insurer has been put on notice and has appeared and contended the matter. Hence, claimant ought to be mulcted with costs. It is submitted at the bar by that Advocates appearing for insurer are being paid a professional fee of Rs.8,000/-. Hence, I am of the considered view that said amount is to be awarded to the insurer since insurer has appeared and contested the matter.
9. Hence, following order is passed:
ORDER
(i) Appeal is hereby dismissed with costs.
(ii) Judgment and award passed by MACT, Mysore in MVC No 1041/2009 dated 04.11.2010 is hereby affirmed. 10
(iii) Costs of Rs.8,000/- shall be paid by claimant to Insurer, failing which insurer would be entitled to recover the same from appellant by executing this order as if it were a decree.
Sd/-
JUDGE *sp