- 1 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 24045 OF 2012 (MV-I) BETWEEN: THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., REP. BY THE ASSISTANT MANAGER, NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, KUSUGAL ROAD, HUBLI. …APPELLANT (BY SRI. S. C. BHUTI, ADVOCATE) AND: 1. MANJUNATH S/O. TUKARAM BAREMMAPPANAVAR, AGE 25 YEARS, OCC: AGRICULTURE & BUSINESS, R/O. R. K. PATIL BUILDING, IIND MAIN, IST CROSS, DESHPANDENAGAR, HUBLI-29. 2. IMAM-HUSSAIN S/O. GOUSUSAB FANIBAND, AGE 48 YEARS, OCC: OWNER OF M/C,NO.KA-25/A-1772, R/O. GANDHI NAGAR, KALAGHTAGI, DIST: DHARWAD. …RESPONDENTS (BY MISS. POOJA BAGADE, AS AMICUS CURIAE TO REPRESENT ON BEHALF OF RESPONDENTS) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC. 173(1) OF MV ACT, 1988, PRAYING TO CALL FOR THE RECORDS, AND SET ASIDE THE JUDGMENT AND AWARD DT. 15.06.2011 PASSED IN MVC NO.935/2009 BY THE FAST TRACT COURT-II, DHARWAD, SITTING AT HUBLI BY ALLOWING THE INSTANT APPEAL, WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This is an insurer’s appeal against the judgment and decree dated 15.06.2011 passed in MVC.No.935/2009 by Fast Track Court-II, Dharwad. 2. The appellant is respondent No.2 before the trial Court and respondent No.1 is the claimant and respondent No.2 is the owner of the offending vehicle. 3. It is the contention of the claimant in the petition that on 11.05.2009, the petitioner and his friend Soudagar were going by walk at extreme left side of Kalaghtagi, Dharwad road, to go to Shigigatti village and they met with an accident at Tumarikoppa cross, around 8.30 p.m, due to rash and negligent driving of the vehicle bearing registration No.KA.25/EB-4912 by its rider, as a result of which, the claimant sustained fracture of right patella and fracture of upper end of tibia. Initially he had taken treatment in primary health Centre, Kalaghtagi and for higher treatment he went to KIMS hospital. He got admitted as in patient from 11.05.2009 till 19.06.2009. He underwent surgery and also took follow up - 3 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 treatment. With these reasons, he prayed to award compensation of Rs.17,50,000/-. 4. Respondent No.2 filed written statement denying the contentions of the claimant and also denied the facts of the accident. 5. From the rival contentions, the Tribunal framed the necessary issues: 1. Whether petitioner proves that on 11.5.2009, when he along with his friend Soudagar were walking, when they were at Tumarikoppa cross on Kalaghatigi-Dharwad road, one Motor-Cycle bearing No.KA.25/EB-4912 riden by its rider in rash and negligent manner came and dashed to petitioner and his friend, so, accident occurred, and petitioner sustained severe injury? 2. Whether petitioner proves that offended motor cycle was insured with R2 Co. on the date of accident? 3. Whether R2 proves that the rider of the motor cycle was not holding valid D.L. as on the date of accident? 4. Whether petitioner is entitled for compensation? If so, at what rate and from whom? - 4 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 5. What order or Award? 6. The claimant to prove his case examined himself as PW-1 and got marked 59 documents as per Exs.P1-P59. The respondents have not lead oral evidence, however, got marked policy of insurance at Ex.R1. After hearing both the parties, the Tribunal partly allowed the petition and awarded compensation of Rs.50,000/- and also directed respondent No.2 to pay compensation with interest, by impugned judgment and award dated 15.06.2011. 7. Being aggrieved by the same, the insurer preferred this appeal. 8. I have heard the arguments of insurer as well as the claimant. The claimant is unrepresented. Therefore, Ms. Pooja Bagade, learned Amicus Curiae has been appointed to represent the claimant. 9. Learned counsel for insurer – appellant vehemently contended in the pleading as well as in the evidence that accident had taken place on 11.05.2009. However, Ex.P6 and unmarked discharge summary shows that accident had taken place on 06.05.2009 and he was admitted in KIMS hospital on - 5 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 that day. The claimant relies on Ex.P6. The said document denies the contention of the petitioner that accident had taken place on 11.05.2009. The said fact clearly indicates that the said vehicle was falsely implicated by the claimant to claim compensation. The accident had not taken place as stated by the claimant and hence prayed to allow the appeal by setting aside the impugned judgment. 10. Learned Amicus Curiae appointed by the Court vehemently contends that the insurer has not taken this contention before the Tribunal. The accident had taken place on 11.05.2009, which is stated in the prosecution papers. Date of accident stated in Ex.P6 might be incorrect. It might be due to mistake of the doctor in mentioning wrong date in the certificate as 06.05.2009 instead of 11.05.2009. On the basis of the said mistake of the doctor, it cannot be held that the said vehicle was falsely implicated and no accident had taken place on 11.05.2009. The Tribunal has considered the materials available on record and rightly granted the relief. There is no infirmity in the said findings and prays to dismiss the said appeal. - 6 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 11. The main question arises for determination is: i. Whether the clamant is able to prove the accident had taken place on 11.05.2009 by the offending vehicle? My finding to the above question is in the ‘Negative’ for the following reasons. 12. As rightly submitted by learned counsel for the appellant, pleadings, evidence of PW-1, charge sheet and its enclosures excluding Ex.P6, shows that accident had taken place on 11.05.2009. However, Ex.P6 was got marked in the evidence of PW-1. It is wound certificate and it was obtained by the police inspector and it was enclosed along with charge sheet. The document shows that claimant visited Primary Health Centre, Kalaghtagi on 06.05.2009 around 8.30 p.m. He visited the hospital at 10.00 pm and he was examined by Senior Specialist Kalaghtagi at 10.05 p.m and he was X-Rayed on 06.05.2009 with X-ray No.3100. On the basis of the x-ray, it was found that he had sustained “fracture of right supra cardylac femur with right femur lateral tibial condyle and fracture of patella.” The claimant has produced photo copy - 7 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 of patient discharge card given by KIMS Hospital. It appears that it was photo copy and it was not marked but said document also reveals that accident had taken place on 06.05.2009 and he was admitted to the hospital on 06.05.2009 and was discharged on 19.06.2009. 13. The claimant did not explain the inconsistency in the date of accident and his admission to hospital prior to the date of accident. He did not examine the doctor, who issued Ex.P6 to clarify the same. Ex.P6 indicates that accident had taken place on 06.05.2009 and he sustained injury. As per Charge-sheet claimant met with an accident on 11.05.2009. Both the facts do not align. Therefore, the claimants utterly failed to prove and establish that he sustained injury in motor vehicle accident that had taken place on 11.05.2009. 14. The Tribunal did not consider these facts i.e. inconsistency in the date of accident as stated in Ex.P6 and date of accident mentioned in pleadings and evidence of PW-1. The said inconsistency creates serious doubt in the contention of the claimant that was not taken note by the Tribunal. It also appears that the appellant did not bring the said fact to the - 8 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 notice of Tribunal. Therefore, there was no reference on the said inconsistency of the date of accident and the date of wound certificate, the claimant suffered injury before accident indicates that, it is not genuine case, produced before the Tribunal. In view of these reasons, I answer the above said question in the ‘Negative’ and proceed to pass the following: ORDER i. The appeal is allowed. ii. The impugned judgment and award dated 15.06.2011 passed in MVC.No.935/2009 by the Fast Track Court-II, Dharwad, sitting at Hubballi is set aside. iii. The claim petition is dismissed. If any amount is deposited by the appellant – insurer, same shall be refunded in its favour on due identification. Registry is directed to send back the records to the Tribunal. - 9 - NC: 2025:KHC-D:4550 MFA No. 24045 of 2012 The High Court Legal Services Committee is directed to pay the fees of Rs.10,000/- to Ms. Pooja Bagade, learned Amicus curiae and her service is highly appreciated. Sd/- (UMESH M ADIGA) JUDGE AG /CT-AN List No.: 1 Sl No.: 5