Karnataka High Court
A G Venkatesh vs Sri Ravikumar on 22 June, 2011
Bench: K.L.Manjunath, H.S.Kempanna
E
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22m'DAY OF JUNE, 2011_
PRESENT *2
THE HON'BLE MR. Jg§$;CE K.L. MANJUNATKE E
THE HON'BLE MR. JUSTICE fig
S
MISC. FIRST APPEAL No.51 1/2007g{MV)
BETWEEN:
A.G.Venkatesh 3/0 late
Gavindaiah, 55 years,
R/at No.l306, 1" floor,
24"'Cr0ss, 2?" Main Rcad,
BSK II Stage, Bangalore{*»
(By Advb¢a:§§sr§fN,s.Bhat)
Rav&kumar_S/6 Hbnnappa,
_M&jQr,_No"4G¢Hl" .... Main,
'_ i"'ޣoSs, Janashaktinagar,
V=Bangalora.
"N R,Rifig Road, BSK III stage,
ifiosakerahalli, Bangalore.
. Ehe Diviaional Manager,
The Qriental Insurance Co. Ltd.,
TLak5hmi Tower, NKO 200/3,
5:"
xW'floorr R.V.Road,
RESPONDENTS
(Advocate Sri.C.R.Ravishankar for R~2) (Respondent~1 Notice dispensed with) KEMP§NwA§ F; *_ .'_ AéfiELfiANT"' 2 This MFA is filed under Sec.l73(l) of MV Act against the judgment and award dated 10.11.2006 passed in MVC No.56/O5 on the file Qf IV Afidl. Judge, Member, MACT, Bangalore, dismissifigerthe claim petition for compensatien. '»'H7~"
This Appeal is ccming on for finelfheerehge, this day, MANJUNATH J. delivexiecl th_e""fe.1_3.o'w.ii1g;,_ = J U D G_._M E Appellant/claimant beingx_ag§rieyed5 by the diemiseal of the dieinLL§ekitiefiu_by the MACT., Bangalore datedv 1Q;i1e2006j passed. in. MVC 56/05 has filed_tHie§eppeelLg. ,'3e
2. Appellefit gedgedpfihe claim petition claiming eompenseeibn on eeeeufit of the injuries sustained by hfin;_in a 'read 'traffic accident occurred on ;¢ 23,i;2$§4iVefi afieet 8 'p.m.. According t0 the Aeleimenfih he was riding his motor cycle bearing No.KA~Q5*WF2805 in front of Ganapathi temple in "eEe§fiakeilappe Circle and he was proceeding 'eeuewafids Thyagarajanagar side. From the opposite H* direction autowrickshaw bearing No.KA«O5~C~6134 figwfi 3 came in a xaah and negligent manner and dashed against the motor cycle as a result of which he fell down from the motor cycle and 3fi$€ained injurie$. Immediately he was shiftadxfibvfifiafafihiza Nuxaing Home wherein he nazréted tha.hi$toryngf the injuries stating thgt fié §@§tai$%d.in@fifi§é§ in a road traffic éCdiéenfi 'ipv§i§i%§"s%ut¢; rickshaw. BharathiU_ NurS§fi§ %§om§« "im$adiately intimatad Basavanag#fli i£§%£i%U§§§i§e Station, he wa$ in the h5%git%¥ fig ih;§a§@¢#£ and later ha was di5ch$fig§& }frqm" fifié .hospital. After diaahaxge f$¢ng the "fip5pital as police did. not investigated fihé gage wés farmed to file one mara comp;aint harrafiifig fiistory of the case. Based adm_ tBé éame, Hfiblice have filed charga-sheet agaxnst the driver of autowrickshaw. ' 3~ Béfgte the tribunal, owner of auto~rick$haw fwaa"@1aced ex~parte. Insurance company aantested "'tha case on the ground that auto~rickshaw in
7.que3ti¢n did not involve in the accident and the 4 claim: petition lodged. by' the claimant was not fimintainable. Tribunal holding that' égtom rickshaw in question was not involved eifieithe accident, dismissed the c:la:i._m__ ~-._1g:>.x:é:{1':5,_t;.2§'<>'z2 Challenging the same, present appeei2ie*filefl:_ }
4. Heard the counsel for the fieptiee," "
5. The main conteofiion of fifigwagpeiieot before me is that immediep§1y%e%%E§fi'o§#§" accident he narrated t?éeH§e#Q£Y€9% fihéeéeegdent before the doctors ogfi aQ§;§§hif fiefieenoj game and. they' have r99iSt%#%aeaw¢§;$駫¥NCeeoo doctors of Bharathi Nurshio§_ Home @fl fifififih have sent nobody to Basavanegudia "Police Station and therefore if fiolaimafiéf @es of """ "the opinion that police would Ap;Qse¢ufie egg» accused and that he was in the V 'hospitelg_7After discharge from the hospital he " hag loéged a complaint to the police as per Ex.P~ f L{WTribunal has rejected the case of the claimant *ew§thout considering that the driver ofi auto~ 5 rickshaw has been prosecuted and he did not contend that he was not responsible for the cause of the accident. Therefore, appellant's counsel submits that the tribunal has committed ee error in dismissing the claim petition on1§ e§neftfiev ground that there is a delay in lodqifig £he EiR. by 10 months.
6. Learned counsel forVJEhe inefixeuceiheompanfi supporting' the orders of "t@ej"txibueél" requeste the court to dismiss7£he"fietifi£ee en the ground that the ceee;#is ea §eeoke6_fu@J?one to get the compeneatien afiainsfiefihe owner of auto-rickshaw which V hee. eVbeee7 insured with the _ respehfient/ifiseianee company and therefore ' eom@en§ fie net liable to answer the claim. 5?:'T"Having*_heard. the counsel for the parties, tee Only fieint to be considered by In; in this 'eeppeeltief " ' 'u_"W1H1ethe:r: the claim petition filed by the "5alaimant was maintainable?"
6
8. On perusal of records, it is clear to us that even 15 minutes from the time Vpf fiche accident he was admitted to Bharathi Nqfeing[83¢e_ in Basavanagudi which is hardly at_a~disfiaece efux 1 Km. from the place of accicentw Zéleifiaet while stating the history of the ceae he he; ;nga:1y* stated that he sustained ifijcry ifi a ficac traffic accident on accountLVefi fl£hee;rceh~ and negligent firiving of an apto-ricKebee en&'ceeec en the same Nursing home geegie§ein eee£n" has intimated Basavanaguae T¥§%f§eE$eiece étetion as per Ex.P~
21. Neeegfiq gag; flee else treated the case as MNC. Wfieg"the,efiLifie£icn has been received by Ba$avanegudi2aTraffic Police, it was for the 5ct£afficE@cIice to envestigate and file the case. Since-Tccieiment could not lodge complaint "'immediately}9on account of the injuries sustained »jT 3? him ehere is a delay in lodging the FIR. But °EiRe=hed been received by Basavanagudi Traffic wflqlice. When they have received intimation from 7 the hospital, it was for the police to investigate the matter. After the receipttef FIR from the petitioner as per Ex.P~l, yol;eeeT§as investigated the case and filed, eharfiéfshéet 1 against the driver of autowrickgfiaw which bee pet been challenged by him. Hwhen ifi is Se .ké ere cf_ the opinion that tribunei fies dot jhsfigfied in dismissing the eeelaifi ,U"pefiition "VAas not maintainable.
9. Accordifigi§gfl «fihi3V7 eppeal is allowed. Judgment afid e§exd"fiasSed by the tribunal holding that tee petflfiiofi fie hefi maintainable is hereby set asideL -Metteizis remanded to the tribunal "<,forf°a£pe3h densideration on merite and in 7,aeebrdahce filth law.
$&f§ §UD@E 1_ml~0m M/K;
EUDQE