Manjunath vs Zapeer K. Faniband and Others

P.S. Dinesh Kumar, J—Appellant claiming to have sustained injuries in a road traffic accident on 2.3.2006, at about 7.00 P.M., near Sericulture Farm on Belgaum-Bailhongal road, within the limits of Hirebagewadi Police Station, feeling aggrieved by the dismissal of the claim petition by the judgment and award dated 28.4.2010 in MVC No. 1760/2007, by the Senior Civil Judge, Asst. Sessions Judge, and Addl. MACT, Bailhongal (''Tribunal'' for short), has presented this appeal.

For the sake of convenience, the parties shall be referred as per their status in the Tribunal.

Pleadings disclose that claimant, riding a bicycle was hit by a Hero-Honda motor cycle bearing No. KA-22/V-0151, resulting in claimant sustaining grievous injuries; he was admitted as an in-patient from 2.3.2006 to 24.3.2006; he incurred an expenditure of Rs. 50,000/-; he was earning Rs. 4,500/- per month from agriculture. He has claimed a sum of Rs. 3,00,000/- as compensation.

Heard Shri K. Anand Kumar, learned Counsel for the claimant and Shri S.V. Yaji, learned Counsel for second respondent - Insurance Company and perused the records.

Learned Counsel for claimant vehemently contended that the Tribunal having recorded a finding that the petitioner was entitled for a compensation of Rs. 1,28,000/-, fell in an error in dismissing the petition based on its findings recorded in respect of issue No. 1. He submits that once the Tribunal held that the petitioner was entitled for compensation and quantified the same, the dismissal of the petition is unsustainable and prayed for setting aside the award of the Tribunal and to award compensation.

Per contra, Shri S.V. Yaji, learned Counsel appearing for respondent No. 2-Insurance Company strongly opposes appeal and submits that this is one of the classic cases of fraud and misrepresentation. Amplifying his contention, he submits that according to the claim petition, the petitioner has suffered injuries in a road traffic accident which is alleged to have occurred at about 7.00 P.M. on 2.3.2006, near Sericulture Farm on Belgaum-Bailhongal road, within the limits of Hirebagewadi police station. While refuting this claim, he draws the attention of this Court to Ex. R1, the medical records maintained by the KLE Society''s Hospital & Medical Research Centre. He points out from the records that the claimant was admitted as a private patient (IP No. 178442) at 1614 hrs (4.14 P.M.). He points out from the same medical records such as the history sheet and the summary sheet wherein it is recorded that the petitioner had sustained injuries in a road traffic accident while going on a ''bike'' on 28.2.2006. He strongly contends that the history of an injured finds its place in three different medical records viz., history recorded by the doctor who attended on him, consultation record and discharge summary. He submits that the consultation record clearly shows that the petitioner had sustained injuries on 28.2.2006 at 12.00 noon. He points out from the Admission and Discharge Sheets that the petitioner was admitted at 3.45 P.M. on 2.3.2006.

To substantiate his assertion that the petitioner was an in-patient in the hospital much prior to the alleged accident at 7.00 P.M., learned Counsel for the respondent relies upon in-patient bills which also indicate the time of admission into MICU Step down Ward at 1614 hours. Counsel for the respondent relies upon the wound certificate-Ex. P8 to point out that according to claimant himself, he had sustained injuries due to a fall from his own bike at 6.30 P.M. on 28.2.2006. He places reliance on a ruling of this Court in the case of New India Assurance Co. Ltd. Vs. G.N. Gopalagowda and Another, (2006) ACJ 2771 in support of his case and prays for dismissal of the appeal.

Learned Counsel for the appellant having realised that, the claimant''s illegal acts were exposed while the hearing was in progress, he sought to withdraw the appeal by filing a memo.

Having heard the learned counsel for the appellant and respondent for considerable length of time, and after perusing the records, this Court is of the view that this was not a fit case to permit the appellant to withdraw the appeal. Accordingly, permission was rejected. For the reasons stated therein, vide order dated 6.3.2015, the Inspector General of Police was directed to hold a preliminary enquiry and to file a report with regard to filing of the charge sheet in C.C. No. 897/2006 on the file of the JMFC III Court, Belgaum. The Inspector General was also directed to ensure that an affidavit of the Investigating Officer is obtained and filed in these proceedings. Subsequently, an affidavit dated 27.3.2015 by one Rajeshakar, Inspector of Police has been filed and the matter was heard again on 16.4.2015 and reserved for judgment. In the meanwhile, a letter dated 18.4.2015 written by the Inspector General of Police was received by the Registry seeking extension of time to complete the inquiry, which has been granted on 29.4.2015.

The claimant has got himself examined as P.W. 1 and doctor Nanda Kumar Joshi, as P.W. 2 and got 76 exhibits marked. On behalf of the respondents, no witness is examined. However, two documents Exhibits R1 and R2 have been marked. The Tribunal framed following three issues for its consideration:

Whether the petitioner proves that the accident arose on 2.3.2006 at about 7.00 p.m. near Reshmi Farm on Belgaum-Bailhongal road, due to Hero Honda Motorcycle No. KA 22/V-151 and sustained grievous injuries by him?

Whether the petitioner is entitled for compensation, If so, at what extent and from whom?

What order?

While answering issue No. 2, the Tribunal came to the conclusion that the petitioner was entitled for a compensation of Rs. 1,28,000/-. However, strangely, while answering issue No. 3, the Tribunal dismissed the petition.

Perusal of records in their sequential order, disclose that the petitioner was brought to the KLE Societies Hospital, Belgaum, on 2.3.2006 with a history having sustained head injury due to fall from his motor cycle on 28.2.2006 at 6.00 P.M. The medical bill shows the time of admission in the MICU Step down Ward at 1614 hrs. on 2.3.2006. An FIR is registered in Crime No. 25/2006 on 5.3.2006 at 16.30 hrs. in Hirebagewadi Police Station, wherein it is stated that some unknown vehicle had dashed against the petitioner who was riding his bicycle. This FIR is lodged by the father of the petitioner. The FIR is followed with a statement by the petitioner dated 26.3.2006 and subsequent statements dated 1.7.2006 and 24.7.2006. In the statement dated 26.3.2006, the petitioner has stated that he could not correctly see the face of the rider of motor cycle which allegedly dashed against his bicycle. In the statement dated 1.7.2006, petitioner states that he can identify the rider if he sees again. In the statement dated 24.7.2006, he has stated that he had not informed the doctor that he had fallen from his own motor cycle as recorded in the wound certificate. In the examination in chief, at para 2 the claimant has stated that the rider of the motor cycle dashed against his bicycle at 7.30 P.M. resulting in him sustaining grievous injuries. He has also deposed that he fell unconscious and remained so for one week.

The evidence of P.W. 2 is not of much consequence as he is a neurosurgeon from Kolhapur who has examined the petitioner on 13.8.2009 nearly, after 3 1/2 years and opined with regard to the disability.

The Tribunal has correctly appreciated the evidence on record with regard to issue No. 1 and rightly come to the conclusion that the material placed before the Tribunal did not substantiate the claim. Having held that the claim was not proved, the Tribunal has quantified compensation while dealing with issue No. 2 and finally dismissed the petition. The least that can be said about the judgment is that there is absolutely no application of mind by the Tribunal while dealing with the case on hand. The material on record clearly discloses that the averments contained in the claim petition are palpably false. The medical records which have come into existence at an undisputed point of time disclose that the cause of injury as per claimant''s version as due to a fall on 28.2.2006. The treating doctor, the investigating officer have not been examined before the Tribunal.

Further, the conduct of the appellant seeking leave of this court to withdraw this appeal while the hearing was in progress clearly indicates that he did not want to invite any adverse order.

Pursuant to the direction issued by this Court, an affidavit by one Rajeshakar, Inspector of Police has been filed and the same reads as follow:

"Herein I, Rajeshakar S/o. Basavanneppa Mestri, Age: 56 years, Occ: Inspector of Police, R/o. S.P. Office, Haveri, today at Dharwad do hereby state on solemn affirm as under:

That during the year 2005-06 I was working as PSI of Hirebagewadi P.S. Dist. Belgaum.

That it is submitted that on 5.3.2006 when I was on duty I had received the radio message from district control Room Belgaum regarding admission of an injured person in the KLE Hospital Belgaum. Immediately after receipt of the message I went to KLE Hospital visited the ward wherein the injured was taking treatment. The injured was unconscious and his father was very much present and he had stated the injured Name as Manjunath. Thereafter, I recorded the oral complaint of the father of the injured Sri Chennappa C. Yellur, R/o. Aralikatti and returned to police station, and the same is registered in Hirebagewadi P.S. Cri. No. 25/2006 u/s. 279, 338 IPC and u/s. 134, 187 of MV Act and sent the FIR to the jurisdictional court along with the original complaint.

During the course of investigation accused has been arrested and released on bail. Further, I secured all the records i.e. MVI report, medical certificate from the competent authorities and filed the charge sheet against the accused for the above said offences.

That, it is submitted that the wound certificate clearly depicts that the injured was admitted in the hospital on 02.03.2006 at 3.45 P.M. and discharged with the I.P. No. 178442 on 24.3.2006.

That it is submitted that nowhere in my investigation either the complainant or the injured had stated about the accident occurred on 28.2.2006 that I had conducted the investigation as per rules and regulations and there is no dereliction of duty in conducting the investigation.

That it is submitted that in compliance with the direction issued by this Hon''ble Court this affidavit is filed before this Hon''ble Court.

Hence this affidavit

Dharwad

Date: 27.3.2015

DEPONENT"

This affidavit is bereft of explanation with regard to the veracity of the claim of the petitioner for the cause of injuries. The affidavit is filed in a very casual manner and far from satisfactory.

It is unfortunate that even after dismissal of the claim petition, the claimant has filed this appeal. Enormous loss of time, energy and resources has occurred in conducting proceedings before the Tribunal and before this Court.

In the result, I pass the following order:

The appeal stands dismissed with a cost of Rs. 10,000/- to be paid by the appellant to the Prime Minister''s National Relief Fund.

The Inspector General of Police, Belgaum is directed to complete the enquiry and report compliance of order dated 6.3.2015 by filing a copy of the enquiry report and the action taken thereon within three months from the date of receipt of a copy of this order.

Registry is directed to send a copy of this order to Inspector General of Police, Belgaum, and bring up the enquiry report before the Court after the same is received.