Sri Satish Kumar Vs United India Insurance Co. Ltd.

SRI SATISH KUMAR S/O ACHALAPPA AGED ABOUT 24 YEARS, R/AT NO.50/2, 3RD B MAIN ROAD, VIRATNAGAR, BOMMANAHALLI, BANGALORE-560068 AND ALSO R/AT NO.181/1, BOMMANAHALLI BEGUR ROAD, HONGASANDRA BANGALORE.

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APPELLANT

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(BY SMT. KALPANA PV.,ADVOCATE)

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AND:

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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UNITED INDIA INSURANCE CO LTD 6TH FLOOR, KRISHI BHAVAN, NEAR HUDSON CIRCLE NRUPATHUNGA ROAD BANGALORE-560 001.

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MR LOGANATHAN M S/O MURUGESHAN P R/AT NO.21-B, 6TH CROSS, MADEENA NAGAR, MG PALYA BOMMANAHALLI BANGALORE-560067.

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RESPONDENTS (BY SRI. BC SHIVANNE GOWDA.,ADVOCATE FOR R1; V/O DTD 19.01.224 NOTICE TO R2 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.05.2018 PASSED IN MVC NO.4330/2013 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT

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NC: 2025:KHC:27620 MFA No. 38 of 2019

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HC-KAR

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OF SMALL CAUSES, BENGALURU, (SCCH-16), DISMISSING THE CLAIM PETITION FOR COMPENSATION AND ETC,.

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THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988¹ challenging the judgment and award dated 03.05.2018 passed in MVC.No.4330/2013 by the X Additional Judge, Court of Small Causes and MACT, Bangalore (SCCH-16)² whereunder the Tribunal has dismissed the claim petition.

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For the sake of convenience, the parties herein are

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referred as per their rank before the Tribunal.

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It is the case of the claimant that on 13.07.2013 at 10:00 am, when the claimant was walking on the Hosur service road near Bommanahally sub-way, the insured motor cycle being driven by its rider in a rash and negligent manner came and hit the claimant causing the accident in question,

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred as to ‘Tribunal’

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whereunder the claimant sustained grievous injuries. Claiming compensation for the same, the claimant filed the claim petition arraying the insurer and owner of the offending motor cycle as respondent Nos.1 and 2 respectively. Respondent No.1 has filed statement of objections denying that the offending motor cycle was involved in the accident. The other averments in the claim proceedings were also denied. The owner of the insured vehicle who was arrayed as respondent No.2 has remained ex-parte before the Tribunal and did not contest the proceedings.

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The claimant examined himself as PW.1 and doctor as PW.2. The insurer examined the medical record keeper of the hospital as RW.1 and marked Ex.R1 and R2. The Tribunal vide its judgment and award dated 03.05.2018 dismissed the claim petition. Being aggrieved, the present appeal is filed by the claimant.

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Learned counsel Smt. Kalpana PV, appearing for the appellant – claimant assailing the judgment and award passed by the Tribunal vehemently contends that the Tribunal, upon erroneous appreciation of the material available on record has held that the defence of the insurer that the vehicle has been

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implicated in the accident is a more probable case and that the claimant has not proved the accident as averred in the claim petition. It is further contended that the averments made in the complaint (Ex.P1) as well as the wound certificate (Ex.P6), discharge summary (Ex.P7) as also the Medico Legal Register (Ex.R1) and police information report (Ex.R2) clearly indicate that the accident occurred as averred in the claim petition i.e., on 13.07.2013 at 10:00 am. It is further contended that the testimony of PW.1 in the cross-examination wherein he has stated that the accident occurred at 10:00 pm is a stray statement which ought not to result in dismissal of the claim petition. It is further contended that there is no inconsistency in the case of the claimant and dismissal of the claim petition by the Tribunal is erroneous. Hence, she seeks for allowing the above appeal and awarding of adequate compensation.

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Per contra , learned counsel BC Shivanne Gowda appearing for respondent No.1 – insurer justifies the dismissal of the claim petition by the Tribunal and contends that the claimant, apart from stating in the cross-examination that the accident occurred on 13.07.2013 10:00 pm, has further

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specifically contended that he did not notice the vehicle number when the accident occurred. Hence, it is contend that the manner in which the number of the insured vehicle has come to the knowledge of the complainant for the purpose mentioning the same in the complaint (Ex.P1) has not been adequately explained. It is contended that the Tribunal has appropriately appreciated the relevant factual matrix and dismissed the claim petition, which ought not to be interfered with by this Court in the present appeal.

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The submissions of both the learned counsel have been considered and the material on record, including the records of the Tribunal, have been perused. The question that arises for consideration is ‘whether the Tribunal was justified in dismissing the claim petition?’

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In the claim petition the claimant has averred that the accident occurred on 13.07.2013 at 10:00 am. However, in the affidavit by way of examination-in-chief at para No.2 it is deposed that the accident occurred on 13.03.2013 at 10:30 pm. In the cross-examination PW.1 has stated that the accident occurred on 10:30 pm. It is also stated by PW.1 in the

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cross-examination that he did not see the number of the motor cycle when the accident occurred.

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It is forthcoming from the complaint (Ex.P1) that the complainant one Sri Raghavendra Rao who is stated to be the relative of the claimant has stated that the claimant informed him about the accident and also that the accident was caused by the rider of the offending motor cycle. In the wound certificate (Ex.P6) the date of admission of the claimant to the hospital is mentioned as 13.07.2013 at 4:00 pm. Even in the discharge summary (Ex.P.7) the date of admission is mentioned as 13.07.2013 at 4:00 pm. However, at page No.2 of discharge summary (Ex.P7) it is mentioned that the patient came with the history of the road traffic accident on 13.07.2013. There appears to be a over writing of date ‘12’ to ‘13’. The Medico Legal Register (Ex.R1) denotes the date of admission as 13.07.2013. The police information report (Ex.R2) also mentions the date of admission as 13.07.2013. In the police information report (Ex.R2) there is an endorsement by the Sub-inspector of police for having received the said intimation on 13.07.2013 at 8:20 pm.

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The Tribunal while adjudicating the claim petition has recorded a finding that PW.1 is not an eye witness and no eye witness has been examined. Further, the testimony of PW.1 has been noticed as to the time of the accident, as also the over writing of the date of the accident in discharge summary (Ex.P7). The Tribunal has also noticed that the notings in the medico legal register (Ex.R1) appears that the accident is caused by 2 two wheelers. It is also held that the police authorities have not recorded the statement of the claimant nor the police officials have visited the hospital.

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Upon re-appreciation of the medico legal register (Ex.R1) wherein it is recorded that the accident was caused by a two wheeler, which hit the claimant on the back side, there is nothing to indicate in the said Ex.R1 that two motor cycles were involved in the accident. To the said extent finding of the Tribunal is erroneous.

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However, the Tribunal was justified in noticing that while in the testimony of PW.1 it is deposed by the claimant that the accident occurred on 10:30 at night, in other records it

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is mentioned that the accident occurred on 10:30 in the morning.

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It is also pertinent to note that the complainant, while lodging the complaint (Ex.P1) has stated that he was informed by the claimant regarding the accident as well as registration number of the vehicle which caused the accident. However, the claimant (PW.1) has deposed in the crossexamination that he did not notice the number of the vehicle when the accident occurred. This aspect of the matter has been rightly appreciation by the Tribunal, wherein a finding has been recorded as to the person from whom the claimant learnt regarding the registration number of the insured vehicle is not forthcoming from the records and no material has been placed in that regard. The claimant has also not examined any eye witness to the accident to prove the accident as averred in the claim petition.

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It is clear from the aforementioned that there is a inconsistency in the case put forth by the claimant between the case as averred in the claim petition and in the date and time of the accident as deposed by PW.1. The crucial aspect as to

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from whom the claimant / complainant learnt regarding the involvement of the insured motor cycle in the occurrence of the accident has also remained unexplained. The Tribunal is justified in adequately appreciating the material on record and dismissing the claim petition.

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In view of the aforementioned, the appellant has failed in demonstrating that the finding of the Tribunal is in any manner erroneous and recorded without noticing any specific oral or documentary evidence on record. Hence, the question framed for consideration is answered in the affirmative .

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Hence, the above appeal is dismissed as being devoid of merit.

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Sd/(C.M. POONACHA) JUDGE

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PNV

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List No.: 1 Sl No.: 25

Sri Satish Kumar v. United India Insurance Co. Ltd.

Case brief

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Sri Satish Kumar v. United India Insurance Co. Ltd.

Case brief

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