Dismissed

Mr. Rakesh v. Jethendra Jogi

Karnataka HC12 Nov 2024MFA/60/2021

Case brief

AI extract

What is this about?

High Court dismissed an appeal against the dismissal of a motor accident compensation claim. The court upheld the Tribunal's finding that the claimant failed to prove the location and manner of the accident due to material inconsistencies in his own medical documents and failure to clarify them, despite the preponderance of probability rule.

What did the court decide?

The appeal against the Tribunal's order dismissing the compensation claim and the Interlocutory Application seeking additional evidence are both dismissed.

Mr. Rakesh Vs Jethendra Jogi — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:45835-DB MFA No.60/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO. 60/2021 (MV-I)

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BETWEEN:

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MR. RAKESH S/O LATE SUKUMAR AGED ABOUT 30 YEARS R/AT KAPPETTUKARE HOUSE NADSAL, PADUBIDRI UDUPI TALUK-574111 …APPELLANT

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(BY SRI. GURUPRASAD B R., ADVOCATE)

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AND:

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JETHENDRA JOGI

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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S/O PRABHAKARA JOGI AGED ABOUT 32 YEARS R/AT D.N.5/99, ALAADI HOUSE PADUSHEDDE VILLAGE

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BONDEL, MANGALURU-575008

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THE NATIONAL INSURANC ECOMPANY LTD RASIK CHAMBERS, MARKET ROAD MANGALURU-575001 REPRESENTED BY ITS DIVISIONAL MANAGER

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…RESPONDENTS

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(BY SRI. ASHOK N PATIL., ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED.20.06.2020 PASSED IN MVC NO. 362/2018 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE AND MACT-II, MANGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT AND ORDER ON I.A.NO.1/2023

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Challenging the dismissal of his claim petition, claimant in MVC No.362/2018 on the file of I Additional District Judge and II Additional MACT, Mangaluru has preferred this appeal.

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Appellant was claimant and the respondents were

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respondent Nos.1 and 2 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 19.11.2017 the claimant met with an accident and was admitted in Father Muller Medical College Hospital, Kankanady, Mangaluru. He filed MVC No.362/2018 before the Tribunal claiming compensation of Rs.20,00,000/- from the respondents. He alleged that on 19.11.2017 at 4:30 p.m when he was travelling with one Manohar on motorbike bearing registration No.K.A.19-EU-1208 as pillion rider, due to rash and

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negligent riding of the motorbike by its rider Manohar, the vehicle skid and both of them fell on the road. In the accident,

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he suffered grievous injuries. He contended that initially he was

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taken to Father Muller Hospital, Thumbe for first aid and thereafter he was shifted to Father Muller Medical College Hospital, Kankanady, Mangaluru. He claimed that due to the injuries suffered in the accident, he has suffered permanent physical disability, he was earning Rs.50,000/- per month from his employment in Abu Dhabi and lost his future earnings, etc. RespondentNos.1 and 2 were the registered owner and insurer of the offending vehicle and they are liable to pay the compensation.

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Respondent No.1 filed written statement denying actionable negligence on the part of the rider of the motorbike. He claimed that claimant himself did not sit properly on the motorbike and due to his negligence, accident took place. Respondent No.2 contested the petition denying involvement of the insured vehicle in the accident and actionable negligence on the part of the rider of the motorbike, injuries suffered by the claimant, his age, occupation, income and its liability to pay the compensation. Respondent No.2 further contended that claimant has suppressed the material facts regarding the accident and to make unlawful gain, false claim petition is filed.

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Before the Tribunal, in support of his claim, claimant got examined himself as PW.1, doctor who issued disability certificate/Ex.P20 as PW.2 and got marked Exs.P1 to P23. Respondents did not lead any oral evidence. However, on behalf of respondent No.2, insurance policy was marked at Ex.R1.

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The Tribunal on hearing the parties by the impugned judgment and order dismissed the petition on the ground that the accident in the alleged manner was not proved. The Tribunal further held that the documents produced by the claimant himself have inherent inconsistencies and that was not explained. The Tribunal further held that there were inconsistencies about place and time of occurrence of accident also. Challenging the said order, the above appeal is preferred by the claimant.

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Sri Guruprasad B.R, learned Counsel for the appellant/claimant reiterating the grounds of the appeal memo submits that regarding the accident, on investigation police have filed chargesheet as per Ex.P7 against one Manohar. He further submits that in the proceedings under Section 166 of the Motor Vehicles Act,1988 (for short ‘MV Act’), the Courts

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cannot adopt strict degree of burden of proof unlike in criminal

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cases. Only the principle of preponderance of probability applies. He further submits that respondents had not challenged the chargesheet or FIR, they did not lead any oral evidence. Therefore, the Tribunal was in error in dismissing the petition.

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In support of his submissions, he relies upon the

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following judgments:

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(i) Mangla Ram V/s Oriental Insurance Company Ltd.,¹ .

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(ii) Sunita and Ors V/s Rajasthan State Road Transport Corporation and Anr² .

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Per contra Sri Ashok N Patil, learned Counsel for respondent No.2-insurer justifying the impugned judgment and order submits that there was delay in filing the complaint and claimant’s own documents show that at the first instance before

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the doctor, claimant himself gave history that the accident occurred due to skid and fall at Padubidri. He further submits that the evidence on record shows that respondent No.1 was none else, but the younger brother of claimant’s friend.

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1 (2018) 5 SCC 656

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2 AIR 2019 SC 994

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Therefore, it becomes clear that subsequently claimant in collusion with respondents and police authorities got the records manipulated, planting insured motorbike to make wrongful gain. He further submits that claimant did not examine Manohar who was allegedly riding the motorbike and had suffered the injuries. He submits that though the principle of preponderance of probability applies, when claimant’s own documents contain inherent inconsistencies, which he failed to explain, the Tribunal was justified in drawing the conclusion that burden of proof was not discharged by the claimant. Therefore, citations relied on by the learned Counsel for the appellant/claimant are not applicable.

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In support of his submission, he relies on the judgment of the Hon’ble Supreme Court in Oriental Insurance Company Ltd., V/s Premlata Shukla and Others³ .

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On consideration of submissions of both sides and on examining the records, the point that arises for determination of this Court is “whether the impugned order of dismissal of the claim petition of the appellant suffers any illegality or perversity?”.

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3(2007)13 SCC 476

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Analysis:

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The claimant came before the Court contending that on 19.11.2017 at about 4:30 p.m he was travelling with Manohar on motorbike bearing registration No.K.A-19/EU-1208. He claimed that Manohar was the rider, himself was pillion rider and due to the actionable negligence on the part of Manohar, motorbike met with an accident at Kelagina Thumbe situated in Bantwal Taluk, Dakshina Kannada. Therefore, initial burden of proving the said fact was on the claimant. Absolutely there is no dispute about the principles that the proceedings under Section 166 of MV Act are summary proceedings and strict degree of proof as required in the criminal cases does not apply and the evidence has to be evaluated based on preponderance of probability.

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It is no doubt true that regarding the accident, Rajesh the younger brother of claimant filed complaint against Manohar claiming that he rode the vehicle in rash and negligent manner leading to the accident and injuries to the claimant. In the complaint, he specifically contended that said Manohar also had suffered the injuries. It is no doubt true that on

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investigation, chargesheet Ex.P7 was filed against said Manohar.

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To prove his case, claimant got examined PW.2 the doctor of the Father Muller Medical College Hospital and got marked Exs.P20 to P23, the disability certificate and case sheets issued by Father Muller Hospital. Claimant /PW1 himself produced Exs.P8 and P9 the discharge summaries issued by the said hospital. Therefore they are the evidence of the claimant himself. Ex.P21 discharge summary issued by the Father Muller Medical College Hospital shows that when the claimant was first taken to the said hospital, he was conscious and oriented and he gave the history of road traffic accident at around at 5:00 p.m. at Padubidri on 19.11.2017. The entries dated 19.11.2017 at 9:00 p.m. Ex.P21 state that patient himself gave history of

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road traffic accident at around 5:00 p.m., at Padubidri on 19.11.2017. The history given in the same hospital on 19.11.2017 at 8:00 p.m., is recorded at page No.69 of the said document to the effect that patient had reported with alleged history of skid and fall from the bike on 19.11.2017 at 4:30 p.m. near Thumbe . In that document it was not stated that the

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skid and fall was due to rash and negligent driving by

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Manohar. Thereby there were inherent inconsistencies in the documents of the claimant himself. It is also material to note that though the alleged incident as per Exs.P1 and P2 FIR and complaint had taken place on 19.11.2017 at 4:30 p.m., complaint was purportedly filed on 20.11.2017 at 7:30 p.m. Ex.P1 does not indicate when FIR was delivered to the Court. PW.1 clearly admitted in his cross-examination that respondent No.1 is the younger brother of his friend. As per Ex.P2, Manohar the alleged rider of the vehicle also had suffered injuries. PW.1 also stated in the cross-examination that Manohar had suffered fracture of his leg. But neither he was examined by the claimant nor any of his medical records were produced. Suppression of such material fact also militates against the claimant.

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Before this Court it is being contended that the entries in discharge summaries were done by the doctors and there might be some mistakes in the same. If there were any inconsistencies due to the entries made by the doctors in Ex.P21, claimant could have got that clarified in the evidence of PW.2, who was examined to prove those documents. No such efforts were made before the Tribunal.

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Hon’ble Supreme Court in Premlata Shukla’s case

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referred to supra has held that when a party produces a document before the Court and relies on the same, the entire document becomes his evidence. He cannot seek to rely only on one part of the document which is favorable to him and seek rejection of other part of the document, which is against him. Further the coordinate Benches of this Court in Mahadevi W/o. Shrishail Kore & Others vs. Shivaputra & Another⁴ and Veerappa vs. Siddappa⁵ , taking judicial notice of unscrupulous persons indulging in rampant malpractices and fraud in the motor accident cases, held that the chargesheet is not the conclusive proof of the occurrence of accident as alleged by the claimant. It was further held that if the materials on record lead to some suspicion, unless the same is clarified, claim petition cannot be granted only based on the chargesheet or police record. The evidence on record has to be examined in the light of the above judgments.

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To plug the loopholes in the evidence adduced by the claimant himself before the Tribunal, before this Court I.A.No.1/2023 is filed under Order XLI Rule 27 read with

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4 M.F.A.No.201689/2016 DD 20.11.2020

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5 ILR 2009 KAR 3562

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Section 151 CPC seeking to produce the copy of the alleged MLC intimation issued by Father Muller Medical College Hospital, Mangaluru. Learned Counsel for the appellant relying on the same submits that at the first instance, MLC intimation was sent with a information that the accident took place at Thumbe and accepting the same, the matter be remanded to the Tribunal with permission to the appellant to lead additional evidence. Remand or additional evidence are not a matter of right. The applicant has to satisfy the three tests contemplated under Order XLI Rule 27 CPC. Namely (i) such document was not in the custody of the claimant when he let in evidence before the Trial Court, (ii) despite due diligence he could not adduce such evidence before the Trial Court and (iii) such evidence is a subsequent event or that is the requirement of the Court.

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Though this appeal was filed in the year 2021, I.A No.1/2023 is filed in the year 2023. Absolutely there is no explanation in the affidavit as to why the document was not produced before the Tribunal or was not sought to be proved. Further said MLC intimation does not even state that it is the certified copy of the accident register extract. Therefore, that

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cannot be called as primary evidence or not even the secondary evidence as contemplated under Section 65 of the Indian Evidence Act,1872. If at all there was any mistake on the part of the hospital authorities, the same should have been clarified through PW.2. Further according to the claimant himself, he was first taken to Father Muller hospital, Thumbe with the history of road traffic accident. If that is the case, MLC should have been registered in the said hospital and MLC intimation must emanate from that hospital. Therefore, documents sought to be produced under I.A.No.1/2023 do not satisfy any of the tests contemplated under Order XLI Rule 27 CPC. When such application is unacceptable, there is no question of remanding the matter to the Tribunal. The reading of judgments in Mangla Ram’s and Sunita’s cases referred to supra show that in those cases eyewitnesses were examined and chargesheets were filed against insured vehicle. Those judgments were rendered based on different aspects. They cannot be justifiably applied to the facts of the present case.

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The Tribunal on judicious appreciation of the evidence on record and supplying sound reasons came to the conclusion that place of accident, manner of the alleged

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