RAVI @ RAVIKUMARA v. MANAGER

2. Heard the arguments of the learned counsel for the appellants and learned counsel for respondent No.2- Insurance Company.

3. The status of the parties before the Tribunal is retained for the sake of convenience.

4. Brief facts of the case are that: On 28.10.2018, at about 7.45 p.m., the petitioner was proceeding on a motor bike bearing registration No.KA-13-EN-167 as pillion rider and the motorbike was ridden by his brother Ranganatha. When it reached near Kanadahalli daba on National Highway 75, the bike was - 3 - NC: 2024:KHC:18895 MFA No. 1222 of 2022 ridden by said Ranganatha in a rash and negligent manner and in order to avoid a road pit, the rider applied the break, as a result of sudden application of break, both rider and pillion rider fell down and suffered injuries. Mr. Ranganatha has suffered simple injuries whereas the petitioner suffered grievous injuries. Thereafter the petitioner was admitted to Mangala Hospital and he was operated in the said Hospital and he has spent nearly Rs.8,00,000/- towards medical expenses. Before the accident the petitioner was doing agricultural activity and was earning Rs.25,000/- per month, but due to accident his income and comforts are badly affected. Hence, the claimant filed a petition under Section 166 of Motor Vehicles Act seeking compensation of Rs.25,00,000/-.

5. It is further alleged by the claimant that due to rash and negligent driving, he suffered disability. Hence, he contended that the rider of the motor bike was negligent in driving the said bike. Respondent No.1 is the owner of the vehicle and respondent No.2 is the insurance company. - 4 - NC: 2024:KHC:18895 MFA No. 1222 of 2022

6. On issuance of summons, respondent No.1 remained exparte. Respondent No.1-insurance company has filed statement of objection by contending that there is inordinate delay in lodging the complaint. The petitioner has no valid and effective driving license to ride the vehicle. Hence, he planted the rider and called himself as pillion rider. The rider is none other than brother of petitioner. Respondent No.1 is the wife of petitioner. The petitioner had obtained driving license only after the accident. As such, the petitioner has played fraud by colluding with respondent No.1 and police authorities and some fabrication is found in the wound certificate and prayed to dismiss the claim petition.

7. The Tribunal has framed the following issues: "1.Whether the petitioner proves that on 28.10.2018 at about 7.45 p.m., in front of Kanadahalli Daba, N.H.75, B.M.Road, driver drove the Motor Bike bearing No.KA-13-EN-0167 in rash and negligent manner and caused accident?

2.Whether the petitioner is entitled for compensation? if so, from whom?

3.What order or award?" - 5 - NC: 2024:KHC:18895 MFA No. 1222 of 2022

8. In order to prove his case, the petitioner got himself examined as PW.1 and examined Dr.Shettar as PW.2 who issued medical certificate and got marked 17 documents. Similarly, respondent No.2 has examined its official as RW.1 and produced 3 documents. After hearing on both side, the Tribunal has answered the issue Nos.1 and 2 in negative and finally dismissed the claim petition. Being aggrieved by this, the petitioner is before this Court.

9. Learned counsel for the appellant has contended that the Tribunal has dismissed the claim petition on the ground that there is delay in lodging the complaint before the police. The injured was admitted to hospital on

28.10.2018 and discharged on 30.10.2018 and there is only two days delay. The police investigated the matter and filed charge sheet. The charge sheet was not challenged by respondent No.2. Merely taking contention that the vehicle was driven by the petitioner on the date of accident by respondent No.2 is not a ground but they have failed to prove the same before the Tribunal. - 6 - NC: 2024:KHC:18895 MFA No. 1222 of 2022

10. Further, he contended that there are no independent witnesses examined by respondent No.2. The finding of the Tribunal is not correct and there is some correction crept in wound certificate at Ex.P5. That itself is not a ground to dismiss the claim petition. The Tribunal has not considered the case in proper perspective and prayed for setting aside the judgment and award passed by the Tribunal and remit the matter to the Tribunal.

11. Per contra, the learned counsel for respondent No.2 -insurance company contended that the delay was not condoned. The accident was occurred on 28.10.2018 but the complaint was lodged on 2.11.2018. Even after discharge from the hospital, there is no intimation from the hospital authorities to the police station for registering the MLC case. The petitioner himself is the rider of the motorcycle and respondent No.1 is the owner of the vehicle and he did not possess valid and effective driving license at the time of accident and applied for the same after one year from the date of accident. As such, the - 7 - NC: 2024:KHC:18895 MFA No. 1222 of 2022 Tribunal has rightly dismissed the claim petition of the petitioner and prayed for dismissal of the appeal.

12. Having heard the learned counsel for appellants learned counsel for respondent No.2-insurance company, following point would arise for my consideration: "Whether the finding of the Tribunal holding that the accident occurred due to rash and negligent act of the petitioner himself? If so, what order?

13. On perusal of records, to prove the case of petitioner, he examined himself as PW.1 and got marked 17 documents. Ex.P1 is the First Information Report, Ex.P2 is the certified copy of complaint, Ex.P3 is the spot mahazar, Ex.P4 is the seizure mahazar, Ex.P5 is the wound certificate, Ex.P6 is the IMV report and Ex.P7 is the charge sheet and remaining documents are medical bills, salary certificate receipt and other medical reports. On the other hand, respondent No.2 was examined as RW.1 and got marked 3 documents namely, authorization letter, - 8 - NC: 2024:KHC:18895 MFA No. 1222 of 2022 insurance policy and copy of driving license. The petitioner sustained injuries and there was delay of 4 days in lodging the complaint. Whereas, the petitioner has contended that the motorbike is driven by one Ranganatha who is none other than his brother and he was a pillion rider. The accident was occurred on 28.10.2018 and the injured was admitted to hospital and admitted to hospital and discharged on 30.10.2018. Of course, the complaint at Ex.P2 and the First Information Report at Ex.P1 was registered on 02.11.2018. As such, there is a delay of 4 days in lodging the complaint. Normally, in road traffic accident, when the injured/deceased was immediately taken to hospital the hospital authorities to treat the injured and it should be registered as medico legal case and in turn the hospital authorities have to intimate to the nearest police station immediately about the accident. But in the case on hand, the intimation was not sent by the hospital authorities though they have treated the patient who had sustained injuries in a road traffic accident. Merely the hospital authorities failed to intimate the police - 9 - NC: 2024:KHC:18895 MFA No. 1222 of 2022 about the medico legal case, that itself is not a ground to hold that it is not a medico legal case and there is no fault on the part of the injured for not intimating the accident to the police immediately. It is pertinent to note in this case that the injured is the husband of owner of motor bike i.e. wife who was taking care of her husband and after that they thought of filing the complaint and they have presumed that the hospital authorities have informed to the police about the accident. But no such intimation was sent by the hospital authorities to the police though it has treated this case as medico legal case. Admittedly the petitioner was discharged from hospital on 30.10.2018 and not filed any complaint immediately and that itself is not a ground to reject the entire claim of the petitioner holding that there is a delay in lodging the complaint and it is a well settled principle that mere delay in filing the complaint cannot be a ground to substantiate the claim of the petitioner or an accident. Apart from that, the injured though taken contention that they have not informed the police when the accident was occurred and the accident - 10 - NC: 2024:KHC:18895 MFA No. 1222 of 2022 was occurred due to rash and negligent act of the petitioner himself and no independent witnesses were examined by respondent No.2 and they have not challenged the charge sheet. Such being the case, mere taking contention that the accident was occurred due to rash and negligent act of the rider of the motorbike is not sufficient to prove the case and the petitioner has to make specific contention. As such, it is necessary to frame the issue on this aspect and the Tribunal has to consider the issue No.1 afresh. Hence, I am of the considered opinion that the Tribunal without considering all these aspects has dismissed the claim petition of the petitioner. Merely taking contention that Ranganatha i.e. the brother of petitioner was driving the motorbike is not correct and without considering the evidence of Ranganatha, the Tribunal is not able to give finding in respect of issue No.1. Therefore, the finding of the Tribunal in issue No.1 is required to be set aside and the matter has to be remitted to the Tribunal with a direction to give opportunity to both the parties to lead their evidence, if the parties are so - 11 - NC: 2024:KHC:18895 MFA No. 1222 of 2022 advised. Therefore, by setting aside the judgment and award passed by the Tribunal, the matter is remitted to the Tribunal for fresh consideration in accordance with law. Hence, I proceed to pass the following: ORDER i) The appeal is allowed. ii) The impugned judgment and award dated

28.12.2021 in MVC No.569/2019 passed by II Addl. Senior Civil Judge & JMFC, Chikmagalur, is set aside. The matter is remanded to the Tribunal for fresh consideration in accordance with law. iii) All contentions of the parties are kept open. iv) Both the parties are given liberty to adduce evidence, both oral and documentary. v) The claimant is not entitled for interest from the date of filing of the appeal to till today, in case the claimant succeed in the claim petition. - 12 - NC: 2024:KHC:18895 MFA No. 1222 of 2022 vi) The Tribunal is directed to dispose of the matter within six months from the date of receipt of a copy of this judgment. vii) Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith. viii) No order as to costs. Sd/- JUDGE SSD List No.: 1 Sl No.: 53