Srinivasa Vs Bajaj Alliance General Insurance Co. Ltd.

BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD. GROUND FLOOR, NO.31 TBR TOWER, 1^ST CROSS MISSION ROAD NEXT TO JAIN COLLEGE BANGALORE STOCK EXCHANGE J.C. ROAD, BANGALORE BY ITS MANAGER

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HC-KAR

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2. SATHISH KUMAR

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S/O C.K. NAIK SURABHI PARTHIBETTU CHERKADI, UDUPI - 576 215

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3. BHEEMANNA

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S/O. LATE MUNISHSWAMAPPA

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NO.245, 11^TH CROSS 5^TH MAIN ROAD BEHIND GANESHA TEMPLE RAJAGOPALANAGARA PEENYA 2^ND STAGE BANGALORE - 58

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…RESPONDENTS

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(BY SRI A.N. KRISHNA SWAMY, ADVOCATE FOR R-1 & R-2 & R-3 ARE SERVED BUT UNREPRESENTED)

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THIS MFA FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO GRANT RS.4,00,000/- AS COMPENSATION AS PRAYED IN THE CLAIM PETITION BY SET ASIDING THE ORDER OF DISMISSAL PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE, (SCCH-6), IN MVC: 3589/2011, DT:02.01.2013, WITH COST AND INTEREST.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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(CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)

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ORAL JUDGMENT

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This appeal is filed by the claimant/injured minor represented by his father challenging the judgment and award dated 02.01.2013 passed in MVC No.3589/2011 by the Motor Accident Claims Tribunal, Bengaluru (for short, 'Tribunal').

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Though this appeal is listed for orders, with

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consent of the learned counsel for the parties, it is taken up for final disposal.

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Sri Shripad V. Shastri, learned counsel

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appearing for the appellant submits that the Tribunal has committed grave error in appreciating the oral and documentary evidence on record. It is submitted that the appellant minor who was seven years of age met with a road accident on 22.05.2010. Immediately, he was taken to K.C.General Hospital and x-ray was taken. On the said day, respondent No.3-driver of the offending vehicle

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HC-KAR

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assured the payment of medical bills. Hence, the appellant could not register the FIR. It is further submitted that on 22.05.2010, the appellant was admitted in K.C.General Hospital and provided treatment. The hospital sent intimation to the police. Based on such intimation, FIR was registered, investigation was carried out and chargsheet was filed against respondent No.3 for negligence. Ignoring all these facts, the Tribunal based on some presumption dismissed the claim petition holding that the appellant has failed to prove that he met with an accident on 22.05.2010 and sustained injuries due to the negligence of the driver of the offending vehicle. It is also submitted that the material on record indicates that respondent No.3 was not having a driving licence and the injuries suffered by the appellant was fracture of middle 1/3 shaft of humerus and hence, for such a case, the finding that the vehicle involved in the accident was not proved and the fact that there is delay in filing the complaint cannot be a correct reason by the Tribunal to deny compensation. Hence, he

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HC-KAR

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seeks to allow the appeal and remand the matter back to

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the Tribunal to reconsider the matter on merits.

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Per contra , Sri A.N.Krishna Swamy, learned

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counsel appearing for respondent No.1 supports the impugned judgment and award of the Tribunal and submits that the Tribunal recorded detailed reasons from

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para 9 to para 12 with regard to the conduct of the appellant. It clearly held that the appellant has failed to establish the factum of accident in respect of his injuries with the vehicle involved and admittedly, there is a delay of nine days in filing the complaint. Hence, he seeks to dismiss the appeal.

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I have heard the arguments of the learned counsel for the appellant, the learned counsel for the respondent No.1 and meticulously perused the material on record including Tribunal records.

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The only point that would arise for

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consideration in this appeal is:

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HC-KAR

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"Whether the impugned judgment and award passed by the Tribunal calls for any interference?"

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The aforesaid point is answered in 'negative' for the following reasons:

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The appellant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 contending that on 22.05.2010 at about 11.00 a.m. when the appellant was walking at the extreme left side of the road, at that time respondent No.3 was driving his vehicle bearing registration No.KA-20-8498 in high speed and dashed the appellant wherein, he fell down and sustained grievous injuries. Thereafter, the appellant was shifted to K.C.General Hospital and was provided treatment.

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It is to be noticed that as per the claim petition, the accident occurred on 22.05.2010 and in order to prove the claim the father of the appellant examined himself as PW1 and got marked Exs.P.1 to P11. On behalf of

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HC-KAR

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respondent No.1, its Senior Legal Executive was examined as RW-1 and got marked Exs. R1 to 8.

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The Tribunal on appreciation of evidence,

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dismissed the claim petition by a clear finding that the appellant has failed to prove that he has sustained injuries due to rash driving and negligence on part of the driver of the offending vehicle on 22.05.2010.

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Admittedly, the jurisdictional police registered a case in Crime No.160/10 on 02.06.2010 as per Ex.P1 based on the written complaint lodged before the jurisdictional police. The wound certificate issued by K.C. General Hospital dated 20.07.2010 indicates that the accident occurred on 22.05.2010. Ex. P7 OPD book in the proceedings indicate that on 22.05.2010, there is no entry with regard to the road accident. It refers only of taking x-ray. If the appellant sustained injury due to the road accident on 22.05.2010, he would have informed the treating doctor at K.C. General Hospital that he met with a road accident on 22.05.2010. However, no such entry with

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HC-KAR

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regard to the accident is found in OPD book for the entry on 22.05.2010. It is a admitted fact that the alleged Medico-Legal case intimation was sent on 01.06.2010 and based on such intimation, FIR came to be registered and investigation was carried out. It is also to be noticed that RW-2, Dr. Chandrakanth, who has clearly disposed before the Tribunal that, on 22.05.2010 the appellant has not revealed that the injuries is due to the accident.

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In view of the specific admission of RW-2 and taking note of the out-patient register, I am of the considered view that the appellant-injured intimated the doctor on 01.06.2010 that he had met with a road accident on 22.05.2010 and based on such information, sending intimation to the police, registering of FIR and filing of chargesheet is all after thoughts and cannot be accepted. The Tribunal recorded the clear finding that respondent No.3 and the appellant are neighbours residing in the same place and also recorded a further finding that filing of the complaint is to secure compensation.

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