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2023 DIGILAW 1153 (KAR)

Ganesh Achar v. United India Insurance Co. Ltd

2023-10-03

LALITHA KANNEGANTI

body2023
JUDGMENT 1. These appeals are filed by both the claimant and the insurance company aggrieved by the award passed in M.V.C.No.468/2010 dtd. 19/11/2011 on the file of the Fast Track Court and Motor Accident Claims Tribunal, Kundapura. The appeal of the claimant is numbered as M.F.A.No.8145/2012 and the appeal of the insurance company is numbered as M.F.A.No.2731/2012 whereby the Tribunal granted an amount of Rs.60, 670.00. 2. The claim petition was filed seeking compensation of an amount of Rs.5, 74, 000.00 for the injuries sustained by the claimant in the accident that took place on 24/11/2009. The Tribunal had granted an amount of Rs.60, 670.00. It is the case of the claimant that on 24/11/2009 at about 12:30 p.m., the claimant was proceeding on a motor bike, at that time, the rider of the offending vehicle rode the same in a rash and negligent manner and dashed against the vehicle of the claimant, by which the claimant sustained injuries. He had spent huge amounts towards the treatment. The insurance company had filed the counter before the Court below stating that the accident had occurred on 24/11/2009 at 12:30 p.m. and a private complaint was lodged on 30/1/2010. According to them, both the owner of the vehicle as well as the complainant belongs to the same village and belongs to the same caste. The claimant was driving the said motor cycle in a high speed and he could not control the movement of the same as such he lost control over the motor cycle and the said vehicle fell on the road and the claimant sustained injuries. It was a self fall and there was an act of collusion between the owner of the vehicle and the claimant and they filed this claim petition for the purpose of claiming the compensation. 3. Considering the fact that a charge sheet is filed against the rider of the offending vehicle and he had also pleaded guilty, the Court below had come to the conclusion that the accident had occurred and further, the Tribunal had negatived the contention of the insurance company that there is collusion. It is the observation of the Court below that nothing could be elicited or they could prove that there is collusion. Accordingly, considering the injuries sustained by the claimant, the Court below granted compensation of an amount of Rs.60, 670.00. 4. It is the observation of the Court below that nothing could be elicited or they could prove that there is collusion. Accordingly, considering the injuries sustained by the claimant, the Court below granted compensation of an amount of Rs.60, 670.00. 4. Learned counsel appearing for the insurance company submits that even according to the claimant, he was admitted in the hospital on 24/11/2009 and he was discharged on 4/12/2009 and the private complaint was lodged on 30/1/2010. In the cross examination, it is elicited that both the claimant as well as the owner of the vehicle belongs to the same village and same caste. The delay in giving the complaint and the spot mahazar was drawn on 6/2/2010 and the wound certificate was dtd. 20/2/2012. All these create any amount of doubts in the manner in which the accident had occurred and how the vehicle had been implicated by the claimant with the act of collusion between the claimant and the owner of the vehicle for the purpose of claiming the compensation. It is also submitted that the appeal against the rider of the vehicle is already dismissed by the Court below on 22/9/2010. Learned counsel submits that the claim petition itself is not maintainable. It is submitted that the Court below without appreciating any of the evidence and only relying on the charge sheet and as the rider of the vehicle had accepted the guilt, had granted the compensation. He submits that the delay in giving the complaint itself is fatal to the case of the claimant and further, mere conviction or accepting the guilt by the accused cannot be a ground for coming to the conclusion that the accident had occurred and there is involvement of the vehicle. He submits that when an application is filed under Sec. 166 of the Motor Vehicles Act the burden lies on the claimant to prove that there is involvement of the vehicle and there is negligence. He submits that the complaint was given nearly after a month because the owner of the vehicle had assured that they will bare the medical expenses and except this, nothing has been stated for the said delay and the said statement is not satisfactory. The Court below had granted the compensation without appreciating the relevant facts and the settled law. 5. The Court below had granted the compensation without appreciating the relevant facts and the settled law. 5. Learned counsel appearing for the claimant submits that the FIR, the charge sheet and the conviction by the Court below wherein the driver of the offending vehicle had admitted his guilt clearly shows that the accident had occurred. He submits that when it is the case of the insurance company that there is collusion, they ought to have adduced the evidence and no evidence was adduced and they could not prove the same. It is submitted that when he had sustained injuries and when he was working as a gold smith, the compensation that was granted by the Tribunal was on the lower side. He submits that he had discharged his burden and proved that the vehicle is involved in the accident and the accident had occurred because of the negligent driving of the driver of the offending vehicle. The Tribunal had rightly held that the insurance company is liable to pay the compensation. He submits that the amount that was granted is on the lower side which has to be enhanced considering the injuries and the treatment he had taken. 6. Having heard the learned counsel on either side, perused the entire material on record. In this case, the accident had occurred on 24/11/2009 at about 12:30 p.m. A private complaint was given on 20/2/2010 and the spot mahazar was drawn on 6/2/2010 at 5:30 p.m. The wound certificate is dtd. 20/2/2010. The police after a full fledged enquiry had filed the charge sheet. The rider of the offending vehicle had accepted the guilt. In this case, there is clear delay of almost 30 days in giving the complaint. According to the claimant, the owner of the vehicle had assured that he will pay the medical expenses and for that reason they have not given the complaint. In every case, the delay in giving the complaint cannot be a ground to non-suit the claimant. However, it depends upon the facts and circumstances of each case. In this case, he was admitted in the hospital on the same day of the accident and was discharged on 4/12/2009. There is no explanation why he kept quiet from 4/12/2009 till 30/1/2010. Apart from that, he had not adduced any other evidence to show about the manner of the accident and the involvement of the vehicle. In this case, he was admitted in the hospital on the same day of the accident and was discharged on 4/12/2009. There is no explanation why he kept quiet from 4/12/2009 till 30/1/2010. Apart from that, he had not adduced any other evidence to show about the manner of the accident and the involvement of the vehicle. The Court below went wrong in observing that the filing of the charge sheet and accepting of the guilt by the owner of the vehicle are the basis to convict the accused. Mere acceptance of the guilt can never be a ground for the MACT to come to a conclusion. When the application is filed under Sec. 166 of the Motor Vehicles Act by adducing the independent evidence. The claimant have to prove their case. There is no doubt that the charge sheet supports the case of the claimant. In this case, considering the circumstances i.e., the date of accident, the date of complaint, this Court is not able to appreciate any of the contentions raised by the claimant as well as the findings of the Tribunal that the vehicle is involved in the accident. In the considered opinion of this Court, the claimant could not satisfactorily prove that there is involvement of the vehicle. In view of the same, this Court is of the view that the Tribunal went wrong in holding that the insurance company is liable to pay the compensation. 7. Accordingly, the appeal of the claimant is dismissed and the appeal of the insurance company is allowed. i. The amount in deposit shall be transmitted to the Court below forthwith and the insurance company is at liberty to withdraw the amount in deposit. ii. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay. iii. No costs. 8. Pending miscellaneous applications, if any, shall stand closed.