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2015 DIGILAW 1139 (KAR)

H. S. Anantha v. M. K. Manjunatha

2015-09-30

S.N.SATYANARAYANA

body2015
JUDGMENT S.N. SATYANARAYANA, J. 1. The first respondent in MVC No. 328 of 2011 on the file of MACT, Channarayapatna has come up in this appeal challenging the finding of the tribunal in fastening liability to pay compensation on it pursuant to judgment dated 18.8.2012. In this appeal while challenging the judgment the appellant has also filed an application seeking permission to produce additional evidence. The appeal and application are taken up for consideration. 2. Brief facts leading to this appeal are as under:- In the proceedings in MVC No. 328 of 2011 which is initiated by the first respondent M.K. Manjunatha S/o Kodilingappa claiming that on 1.2.2010 at about 8.45 p.m. while he was walking on the left side of B.M. Road in front of Court premises he was hit by motorcycle bearing No. KA 3L 1721 which came from the hind side in a rash and negligent manner. Though it is stated that the accident has taken place on 1.2.2010 at about 8.45 p.m. the complaint with reference to said accident is filed on 4.2.2010 before the Channarayapatna police at 5.30 p.m. The complaint is filed by the claimant himself. It is seen that the claimant was initially taken to Government Hospital, Channarayapatna and subsequently to S.S.M. Hospital, Hassan where it is stated that he has taken treatment spending more than a lakh of rupees. Though it is stated that he was admitted to two hospitals and several bills issued from the said hospitals which are produced the particulars with reference to the recording of MLC registered in both the hospitals is not produced. 3. Admittedly, the claim of the first respondent before the tribunal is that he suffered injury in a road traffic accident. It is also his case that immediately after the accident he noticed the number of the motorcycle and as well as identified the person who was riding the motorcycle. If that is so, he should have definitely mentioned the same to the doctors at Government hospital, Channarayapatna and S.S.M. Hospital in Hassan where he was admitted on 1.2.2010. The said documents are not produced before the court to show that the claimant had suffered injuries in the accident involving motorcycle bearing No. KA 13L 1721. The wound certificate which is issued by the S.S.M. Hospital is relied in the proceedings before the tribunal as Ex.P4 which is issued on 19.2.2010. The said documents are not produced before the court to show that the claimant had suffered injuries in the accident involving motorcycle bearing No. KA 13L 1721. The wound certificate which is issued by the S.S.M. Hospital is relied in the proceedings before the tribunal as Ex.P4 which is issued on 19.2.2010. Even the said document also does not disclose about the involvement of the aforesaid vehicle. 4. It is seen that in the police documents referred to as Exs.P1 to P9 the proceedings is sought to be pursued by the claimant and there appears to be a semblance of contest by the first respondent in denying the claim as fraudulent one. If we look at Ex.P3 which is the complaint which was filed on 4.2.2010 based on which Ex.P2 the FIR is registered, Ex.P4 is the wound certificate of S.S.M. Hospital, Ex.P5 is the charge sheet, Ex.P6 is the spot mahazar, Ex.P7 is the seizure mahazar which is peculiar than the instant case there is an attempt to demonstrate that the vehicle belonging to appellant herein is involved in the accident. They would show as if the appellant herein owner of the vehicle has produced the vehicle before the police on 3.3.2010 at that time the police in the presence of panchas who are signatories to the said documents which is at Ex.P7 noticed damage to the motorcycle which has suffered damage to head light, indicator and meter assembly and also the steering handle of the said motorcycle and as well as its tool bars. These are the damages said to have noticed on 3.3.2010. Surprisingly the said vehicle is not sent to Motor Vehicles Department for inspection by the Motor Vehicle Inspector. 5. The Amanath mahazar is relied upon to demonstrate that the vehicle belonging to appellant is involved in the accident and aforesaid are the damages which are caused to the vehicle in the said accident. Based on these documents the claim petition was pursued. At this juncture it is also necessary to look at the defence which is taken by the appellant who is first respondent before the tribunal. Based on these documents the claim petition was pursued. At this juncture it is also necessary to look at the defence which is taken by the appellant who is first respondent before the tribunal. The written statement filed by the first respondent would indicate that a defence is taken to the effect that the vehicle is not involved in causing the accident at first instance and that in the event the claimant would demonstrate that he has suffered injury in an accident involving the vehicle belonging to first respondent the same will have to be answered by respondent No. 2 before the tribunal who is insurer of the motorcycle belonging to appellant herein who is first respondent before the tribunal. Whereas in the statement filed by the insurer who is second respondent in this proceedings and as well as before the tribunal is to the effect that the entire claim petition is fraudulent one right from the time of filing the complaint belatedly on 4.2.2010 and subsequently in planting the vehicle as if it is seized on 3.3.2010 till the date of persuading the claim petition before the tribunal in getting a fat compensation to claimant in a sum of Rs. 2,09,100. 6. It is seen that in the proceedings before the tribunal though the appellant herein owner of the alleged offending vehicle files statement, does not participate in the proceedings when he has taken a serious defence to demonstrate that his vehicle was not involved in the accident and that there is an attempt to fix his vehicle when it comes to the evidence portion he completely accept the evidence of claimant in stating that his vehicle was involved in causing the accident he does not choose to cross examine the claimant with reference to his statement that the vehicle of appellant herein is the vehicle which has caused injuries to him. He also does not lead independent evidence when the matter is persuaded by the claimant before the tribunal. He would conveniently keep away from the proceedings until the claim petition is disposed of wherein the liability on the insurer is absolved by the tribunal on the premise that the claim is suspicious as against the second respondent. It is only after that the first respondent owner before the tribunal has come up in this appeal. 7. He would conveniently keep away from the proceedings until the claim petition is disposed of wherein the liability on the insurer is absolved by the tribunal on the premise that the claim is suspicious as against the second respondent. It is only after that the first respondent owner before the tribunal has come up in this appeal. 7. It is seen that the claimant who persuaded the claim petition in MVC No. 328 of 2011 with all seriousness before MACT, Channarayapatna when served with notice in this proceedings would conveniently stay away from the court. It is the first respondent before the tribunal, owner of offending vehicle has taken the onus of pursuing this appeal in shifting the liability to pay compensation on the Insurance Company. With this the modus operendi between the claimant and first respondent before the tribunal who are appellant and first respondent in this proceedings in somehow trying to get the compensation awarded by the tribunal to be shifted on the Insurance Company. This tacit understanding between the owner of the offending vehicle and the claimant is clearly seen in the manner in which the claim petition was persuaded by the first respondent who is appellant herein and the appeal being opposed by the claimant who is first respondent in this proceedings in both the proceedings. The only person who is seriously opposing the claim is the insurer of the motorcycle which clearly speak volume about the manner in which this proceedings is conducted. The only person who is seriously opposing the claim is the insurer of the motorcycle which clearly speak volume about the manner in which this proceedings is conducted. When it has come to the stage where the claimant before the tribunal and the owner of offending vehicle who is appellant before this court are convinced that there is no other way that they could get the liability to pay compensation fastened on the insurer have come up in this proceedings where the appellant owner of the offending vehicle is seeking permission for reopening of the matter and adducing the evidence of charge sheeted witness to demonstrate that the accident which is caused involving his vehicle is seen by the charge sheet witnesses and also the person who is said to be driving the vehicle on that day who has admitted the accident before the court of Magistrate where the prosecution launched against him for the offence under Section 227, 338 of IPC r/w Section 134A and 134B of IMV Act is compounded in his pleading guilty and paying the fine of Rs. 1,000/- with the help of these documents further attempt is being made to shift the liability. 8. In any event this court feel that the entire exercise which is started by the claimant with the assistance of owner of alleged offending motorcycle bearing No. KA 13L 1721 is nothing but a consorted and joint effort by them to see that the liability to pay compensation is somehow shifted on the insurer of the motorcycle which is not even involved in the accident. In that view of the matter, this court find no justifiable grounds are made out to admit this appeal to shift the liability on the Insurance Company. However, while parting with this appeal this court would make it clear that the involvement of the vehicle in the accident itself is doubtful in this proceedings and it is seen in the claimant who was very serious in pursuing the claim petition before the tribunal in staying away from this court when it comes to opposing the appeal which is filed by the owner of the alleged offending vehicle. In that view of the matter, while disposing of this appeal this court would observe that even though there is a finding by the tribunal to the effect that the claimant is entitled to receive compensation from the owner this court find the involvement of the vehicle itself is doubtful. Therefore, the liability which is fastened on the owner also is erroneous. In that view of the matter, to that extent the appeal filed by the owner is allowed. Therefore question of shifting liability to pay compensation on the second respondent Insurance Company does not arise. 9. However, while disposing of this appeal it is made clear that the amount of Rs. 25,000/- which is statutory deposit made by the appellant is confiscated to the court and the registry is directed to treat the same towards the cost of this proceedings.