Karnataka High Court
Irappa S/O Balu Khandekar vs Sagar Krishna Bhogan on 1 July, 2020
Bench: S G Pandit, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
Dated this the 1st day of July 2020
Present
THE HON'BLE MR. JUSTICE S.G. PANDIT
And
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A. No.101150 of 2015 (MV)
Between
Mr. Irappa, S/o Balu Khandekar
Age: 34 Years,
Occ: Centering Work Now Nil,
R/o: Turamari Village,
Tq & Dist: Belagavi-590 016 . ...Appellant
(By Sri. Madanmohan M. Khannur, Advocate)
And
1. Shri. Sagar Krishna Bhogan
Age: Major, Occ: Business,
R/o: Ramling Galli, Turamari,
Tq & Dist: Belagavi-590 016
2. The Oriental Insurance Co. Ltd.,
Through Its Divisional Office,
Club Road, Belagavi-590 016,
(Insurer of Motor Cycle No.KA-22/EE-6197)
...Respondents
(By Sri. G.N. Raichur, Advocate for R2)
(R1 - served)
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This MFA is filed under Section 173(1) of the
Motor Vehicles Act, against the judgment and award
dated 06.02.2015 passed in M.V.C. No.633/2014 on the
file of the Presiding Officer, Fast Track Court-I and
Member, Additional Motor Accident Claims Tribunal
Belagavi, dismissing the petition filed under Section 166
of the MV Act.
This MFA coming on for Hearing through Video
Conference due to Covid-19, this day, S.G. PANDIT, J
delivered the following:
JUDGMENT
The claimant is in appeal being aggrieved by the dismissal of the claim petition under the judgment and award dated 06.02.2015 passed in M.V.C. No.633/2014 on the file of the Fast Track Court-I and Additional Motor Accident Claims Tribunal, Belagavi (for short 'the Tribunal').
2. The appellant is the injured claimant. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation for the injuries sustained by him in an alleged motor vehicle accident that took place on 26.03.2014. The claimant/appellant stated that on 3 26.03.2014, when he was proceeding from Uchagaon cross towards Turamari village, as a pedestrian, a motorcycle bearing registration No.KA-22/EE-6197 came in a rash and negligent manner and dashed to the claimant from behind as a result of which, the claimant sustained grievous injuries. Immediately, the claimant was shifted to Vijaya Hospital, Belagavi, where the claimant took treatment as an inpatient by spending Rs.1,00,000/-. It is stated that since the claimant was injured, there was nobody to inform the police and hence, there was a delay in filing the complaint. The injured claimant contended was doing centering work earning Rs.30,000/- per month and due to the accidental injuries sustained by him, he was not in a position to do the same work which he was doing prior to the accident.
3. Notice was issued on the claim petition. Both respondent Nos.1 and 2 i.e., the owner and insurer of the motorcycle appeared through their respective 4 counsel. Respondent No.1-owner of the vehicle filed his statement of objections admitting the accident. However, he denied the other averments of the claim petition. Further, he stated that the motorcycle was insured with respondent No.2. Respondent No.2-insurer filed its statement of objections denying the entire case of the claimant. Further, it was contended that the rider of the motorcycle was not holding a valid and effective driving licence. It also contended that there was violation of terms and conditions of the insurance policy. Based on the pleadings of the parties, the Tribunal framed the following issues for consideration:
1. Whether the petitioner proves that on 26/3/2014 at about 8.30 p.m. while he was proceeding from Uchagaon cross towards Turmuri near Kirshna Bhuvan on Belagavi-
Vengurla road, the rider of the motor cycle bearing registration No.KA-22/EE-6197 came in rash and negligent manner from Belagavi side and dashed to the petitioner and caused the accident as a result of it, he sustained grievous injuries?
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2. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
4. In support of his claim, the claimant got himself examined as P.W.1 and the doctor as P.W.2 apart from marking the documents as Exs.P.1 to P.27. The respondent insurance company examined R.W.1 and also examined R.W.2 apart from marking the documents as Exs.R.1 to R.6. The Tribunal answered issue Nos.1 and 2 in the negative and dismissed the claim petition giving a finding that the claimant failed to prove that the accident was due to rash and negligent riding of the motorcycle by respondent No.1-owner of the motorcycle.
5. Heard learned counsel for the claimant/appellant and the learned counsel for the respondent No.2-insurance company. Perused the trial Court records.
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6. The learned counsel for the appellant would contend that the Tribunal committed a grave error in dismissing the claim petition ignoring the material evidence both oral and documentary placed on record. It is his submission that the Tribunal failed to appreciate Ex.P.1-FIR and Ex.P.2-complaint. Further, it is submitted that the charge sheet was filed against respondent No.1 and as such, the finding of the Tribunal that the claimant failed to prove the accident is erroneous and liable to be set aside. The learned counsel submits that the Tribunal has not appreciated properly the documents at Ex.P.8 and Ex.R.1. It is his contention that though the contents in Ex.P.8 and Ex.R.1 note that the claimant had gone to the hospital with history of self fall, the claimant/appellant was grievously hurt and he does not remember as to what statement he had made before the doctor at the time of admission to the hospital and in those circumstances, the Tribunal ought to have appreciated Ex.P.1 holding 7 issue No.1 in favour of the claimant. Thus, he prays for allowing the appeal.
7. Per contra, learned counsel for respondent No.2-insurance company submits that Ex.P.8 and Ex.R.1 are clear and they are claimant's document, which record the statement of the claimant that he had been admitted to the hospital with the history of self fall from bike. Further, it is his contention that the accident had taken place on 26.03.2014 and the complaint is filed before the police on 29.03.2014. There is a delay of three days in lodging the complaint and no explanation is forthcoming either in the complaint or any other document. The complaint-Ex.P.2 is lodged by the brother-in-law of the injured claimant and he (complainant) has not been examined before the Tribunal. Further, he submitted that no cogent material is placed on record to prove the accident, as such, the Tribunal is justified in dismissing the claim petition. Thus, he prays for dismissal of the appeal. 8
8. Having heard the learned counsels for the parties and on perusal of the trial court records, the only point which falls for consideration is, Whether the Tribunal is justified in dismissing the claim petition?
9. The answer to the above point would be in the affirmative for the following reasons:
The claimant alleges that, on 26.03.2014, when he was proceeding from Uchagaon cross towards Turamari village, by walk, a motorcycle bearing No.KA-22/EE- 6197 came in a rash and negligent manner and dashed to the claimant from behind. A complaint in respect of the said accident is lodged as per Ex.P.2 by the brother- in-law of the claimant on 29.03.2014. There is delay of three days in lodging the complaint. Neither the complaint nor any other document would explain the delay in lodging the complaint. As stated above, the complaint is lodged by the brother in-law of the injured claimant, but the said complainant is not examined 9 before the Tribunal. In the complaint, the complainant states the he enquired about the accident with his brother-in-law i.e., the claimant when he was admitted to the Vijaya Hospital, Belagavi. In the complaint, the complainant states that the claimant had informed him that after the accident one Suresh Maruti Patil and Laxman Bharmana Tagaonkar took him in a private van and got admitted in Vijaya Hospital. However, those two persons, who had taken the claimant to the hospital and admitted therein, have not been examined before the Tribunal to prove the accident. They would have been the best persons to depose with regard to the accident. In his cross-examination, the claimant (P.W.1) states that he owned motorcycle and if he had any work, he used to take his motorcycle. Ex.P.8-wound certificate, dated 26.03.2014, records that the claimant had history of self fall from the bike at the time of admission to the hospital. Ex.R.1-OPD record also records the claimant had history of self fall from the 10 bike injuring the left knee. Ex.R.2 also notes the history of fall. Ex.P.1-F.I.R. notes that the motorcycle bearing No.KA-22/EE-6197 came from behind and dashed to the claimant, which is based on Ex.P.2, the complaint filed by the brother-in-law of the injured claimant that too after three days from the date of the accident. No explanation is forthcoming for the delay in lodging the complaint. Merely because the charge-sheet is filed against respondent No.1, the owner of the motorcycle, in the absence of any other corroborative evidence, one cannot come to the conclusion that the claimant suffered accidental injuries involving the motorcycle bearing No. No.KA-22/EE-6197. The other materials place on record with regard to history of admission of the claimant to the hospital are against the claimant/appellant which record that the claimant had been admitted with history of self fall from the bike.
10. The Tribunal, after taking note of all the material on record, by its reasoned judgment, has 11 rightly arrived at the conclusion that the claimant has failed to prove that the accident was due to rash and negligent riding of the motorcycle. No ground is made out nor is any material available to interfere with the impugned judgment and award. Hence, the appeal is dismissed.
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JUDGE Sd/-
JUDGE Kms