Dated this the 10 th day of July Before. Miscellaneous First Appeal No.21322/2008 (MV)

Transcription

1 : 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH Dated this the 10 th day of July 2014 Before THE HON BLE MR. JUSTICE PRADEEP D. WAINGANKAR Miscellaneous First Appeal No.21322/2008 (MV) Between The United India Insurance Co., Ltd., Branch office, Hospet Road, Sirsi, U.K., Rep by its Divisional Manager, Divisonal Office, Kaikini Road, Karwar. P.No /32/010/16/02116/2001 Bajaj M-80 N.KA-31/H Appellant (By Sri. M.G.Gadagoli, Advocate) A n d : 1. Smt. Gouri Venkatraman Hegde, Age: 50 yars, Occ: Coolie, R/o Taddalse, Jaddigadde, Sirsi, U.K. 2. Ratnakar S Hegde, Age Major, Occ: Business, R/o Byagadde, PO Dodnalli, Tq Sirsi, U.K. (Owner of Bajaj M-80 KA-31/H/6718) Respondents (By Sri. K.Raghavendra Rao & Smt. V.Vidya, Advs., for R2) (R1 service held sufficient.

2 : 2 : This appeal is filed under Section 173(1) of the Motor Vehicles Act against the judgment and award dated passed in MVC No.91/2006 on the file of the Additional MACT, Sirsi, partly allowing the claim petition for compensation and seeking enhancement of compensation. This appeal coming on for Admission this day, the Court delivered the following: JUDGMENT Though the matter is listed for Admission, the same is taken up for final hearing with the consent of the learned counsel for the parties. 2. This appeal by the appellant-united India Insurance Company Limited is preferred against the judgment and award dated passed in M.V.C. No.91/2006 on the file of the Additional Motor Accident Claims Tribunal, Sirsi. as under: 3. The brief facts which gave rise to this appeal are

3 : 3 : On at about a.m., one Smt. Gouri Venkataraman Hegde, the injured-claimant said to be proceeding as a pillion rider on a motor bike bearing No.KA-31/H-6718 belonging to one Ratnakar S.Hegde. When she reached near Nehrunagar cross, Sirsi, due to rash and negligent riding of the motor bike by Ratnakar S.Hegde, the motor bike skidded and thereby capsized. As a result, the claimant sustained grievous injuries. Immediately, she was shifted to Dr. D.M.Hegde Hospital at Sirsi where she was given firstaid treatment and thereafter as per the advice of the family members, she was shifted to St. Martha s Hospital, Bangalore, where she was treated as inpatient for a period of 15 days. As such, claiming compensation she filed a claim petition under Section 166 of the Motor Vehicles Act against the owner-cum-rider and the insurer of the motor bike. The claim petition was contested by the insurance company. It came up for consideration before the Tribunal and the Tribunal upon hearing the counsel appearing for the parties and

4 : 4 : upon consideration of the entire material on record by the impugned judgment and award, awarded a global compensation of Rs.66,000/- and directed the owner and insurer of the motor bike to satisfy the award. 4. Aggrieved by the judgment and award to the extent directing the insurance company to indemnify the owner of the motor bike, this appeal has been preferred by the insurance company on the ground that the motor bike in question was not at all involved in the accident and it has been falsely implicated just to claim compensation in collusion with the owner of the motor bike, who is none other than the relative of the claimant that too after 2 years and 9 months from the date of the alleged accident. 5. I have heard both the learned counsel appearing for the appellant-insurance company and the 2 nd respondent. Perused the records secured from the Tribunal.

5 : 5 : 6. The learned counsel for the appellant-insurance company would submit that the motor bike in question was not at all involved in the accident and by taking undue advantage of the injury sustained in some other incident, the motor bike in question has been falsely implicated by the claimant in collusion with the owner of the motor bike that too after 2 years and 9 months from the date of the alleged accident and the Tribunal without going into this aspect in its proper perspective has directed the insurance company to indemnify the owner of the motor bike. 7. As against this, the learned counsel appearing for the 2 nd respondent would submit that the Tribunal on proper appreciation of the evidence has rightly recorded a finding that the accident and the resultant injuries sustained by the claimant are on account of the rash and negligent riding of the motor bike in question and thereby awarded a just and

6 : 6 : reasonable compensation of Rs.66,000/- and that there is no merit in this appeal, it is liable to be dismissed. 8. Upon hearing the submissions made by both the learned counsel appearing for the parties and upon closer scrutiny of the entire material placed on record, the only point that arises for my consideration is as under: Whether the finding recorded by the Tribunal that the accident and the resultant injury sustained by the claimant are on account of rash and negligent riding of the motor bike bearing No.KA-31/H-6718 is sustainable in law? 9. Admittedly, the insurance company has not questioned the quantum of compensation awarded by the Tribunal in favour of the claimant. Nor the claimant has preferred any appeal for enhancement of the compensation. The insurance company has filed this appeal challenging the very involvement of the motor bike in question in the alleged accident. In order to

7 : 7 : establish the involvement of the motor bike in question, the claimant-smt. Gouri Venkatraman Hegde got herself examined as P.W.1 and in her evidence she has reiterated the case made out by her in the claim petition. She also examined one Rajiv Ramanath Bhat stated to be an eye-witness to the accident as P.W.2. Apart from the oral evidence of P.W.1 and P.W.2, she produced Ex.P.1-F.I.R., Ex.P.2-complaint, Ex.P.3-wound certificate, Ex.P.4-Discharge card. As against the evidence placed on record by the claimant, the insurance company examined its official as R.W.1 who, in turn, has spoken that the motor bike in question was not at all involved in the accident. Though he has spoken that the motor bike was not at all involved in the accident since he is not an eye-witness to the accident in question, his evidence will be of no assistance. Admittedly, immediately after the alleged accident, the claimant was taken to Dr. D.M.Hegde Hospital at Sirsi for treatment. But nothing is placed on record for having taken treatment in Dr. D.M.Hegde Hospital. If

8 : 8 : really, the claimant had taken treatment from Dr. D.M.Hegde Hospital, there must have been records to that effect. She has not produced even a scrap of paper for having taken the treatment in Dr. D.M.Hegde Hospital at Sirsi. If really, she had taken treatment in Dr. D.M.Hegde Hospital at Sirsi, definitely a medicolegal intimation ought to have been forwarded to the police station. The very fact that no such documents have been produced, itself goes to show that the claimant has not at all taken treatment in Dr. D.M.Hegde Hospital. Further, the case of the claimant is that after taking first-aid treatment at Sirsi, she was taken to St. Martha s hospital, Bangalore. Ex.P.3 is the wound certificate issued by St. Martha s hospital, Bangalore wherein the history is shown as RTA in Sirsi on Ex.P.3-wound certificate issued by St. Martha s Hospital which discloses that she sustained fracture of both bones (tibia and fibula) of the right leg. Ex.P.4 is the discharge summary issued by St. Martha s Hospital which reveals that she was admitted to the

9 : 9 : Hospital on and discharged It also reveals that she sustained fracture of both bones of the right leg. Even in Ex.P.4, history is shown as RTA while travelling as a pillion rider on a two-wheeler. If really the claimant sustained injuries in the motor vehicle accident, nothing prevented the hospital authorities from forwarding the medico-legal intimation to the police station within whose jurisdiction the alleged accident occurred. But, no such medico-legal intimation has been forwarded either by Dr. D.M.Hegde Hospital or by St. Martha s Hospital, Bangalore, where she was treated as inpatient for 15 days. No explanation is forthcoming from the claimant as to why she did not inform the accident to the police station. Moreover, the owner of the motor bike has neither informed nor furnished necessary documents regarding accident to the insurance company. Of course, the registration of a criminal case is not a condition precedent to file a claim petition under Section 166 of the Motor Vehicles Act, But, here, in this case, without

10 : 10 : informing the police a private complaint came to be filed before the Magistrate at Sirsi on though the accident said to have occurred on Almost after a period of three years, the private complaint came to be filed which came to be referred to the police under Section 156(3) of Criminal Procedure Code. The New Market Police Station at Sirsi registered a case in Crime No.32/2005 against the rider-cum-owner of the motor bike in question for the offences under Section 279 and 338 of IPC. Thereafter, what happened to the said case is not forthcoming. The charge-sheet is also not filed for the reasons best known to the claimant. The so-called eye-witness viz., Rajiv Ramanath Bhat, who has been examined as P.W.2, has also not given information to the police. Merely, because in Ex.P.3-wound certificate and Ex.P.4-discharge summary issued by St. Martha s Hospital, history is shown as RTA, it cannot be said that the motor bike in question was involved in the accident. The inordinate delay of three years in filing the complaint that too before the Magistrate is not

11 : 11 : explained. Though there is no limitation to file a claim petition under Section 166 of the Motor Vehicles Act, the claimant is expected to file the claim petition within a reasonable period of time, if really the accident occurred due to the involvement of the motor bike in question. Moreover, the owner of the motor bike is none other than the relative of the claimant as admitted by her in the complaint-ex.p.2 presented by her before the JMFC, Sirsi. All these facts and circumstances drive this Court to infer that the claimant has not sustained injuries in the accident due to the involvement of the motor bike in question. But subsequently after about 2 years 9 months a complaint came to be presented before the Magistrate only to file a claim petition in collusion with owner of the motor bike, who is none other than the relative of the claimant. 10. The learned Presiding Officer of the Tribunal has not properly appreciated the evidence placed on record. The Learned Presiding Officer has just placed reliance on Ex.P.1-FIR and Ex.P.2-complaint filed after

12 : 12 : two years and 9 months from the date of the alleged accident. It is needless to say that the finding recorded by the Tribunal that the claimant sustained injuries on account of rash and negligent riding of the motor bike bearing No.KA-31/H-6718 is not sustainable in law, it is liable to be set aside and consequently, the claim petition is liable to be dismissed as not maintainable. Accordingly, I proceed to pass the following: ORDER (i) The appeal filed by appellant-united India Insurance Co. Ltd., is allowed. The judgment and award dated passed in M.V.C. No.91/2006 on the file of the Additional Motor Accident Claims Tribunal, Sirsi, is hereby set aside. Kms (ii) The claim petition filed by 1 st respondent/ claimant- Smt. Gouri Venkatraman Hegde under Section 166 of the Motor Vehicles Act before the Addl. MACT, Sirsi, is dismissed as not maintainable. Sd/- JUDGE