1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A.No.6889/2013 (MV)
C/W.
M.F.A.CROB No.157/2013 (MV)
M.F.A.No.6889/2013 (MV)
BETWEEN :
THE LEGAL MANAGER UNITED INDIA
INSURANCE COMPANY LIMITED, NO.25
SHANKARNARAYANA BUILDING
M.G ROAD, BANGALORE - 01.
BY
REGIONAL OFFICE
UNITED INDIA INSURANCE CO LTD.,
KRISHI BHAVAN, 5TH AND 6TH FLOOR
NRUPATHUNGA ROAD,
HUDSON CIRCLE
BANGALORE - 50027
BY ITS MANAGER.
...APPELLANT
(BY SRI. O .MAHESH, ADV.)
2
AND :
1. N BALAKRISHNA RAJU
AGED ABOUT 52 YEARS
S/O LATE R NARAYANARAJU
R/AT NO.234, DBM ROAD
BEHIND CANARA BANK
CHIKKABALLAPURA - 562 101
PRESENTLY RESIDING AT
NO.561, 3RD A MAIN
NEAR GOVT, HIGH SCHOOL
HEBBAL, BANGALORE - 560024
2. S YANGAMA RAJU
MAJOR
R/AT NO.990, SHIVAKRUPA BUILDING
OPP RAILWAY STATION
CHAMARAJAPET
CHICKBALLAPUR - 562 101
...RESPONDENTS
(BY SMT. SANDYA V PRABHU, ADV FOR R1:
SRI. L. NARASIMHA MURTHY, ADV FOR R2.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
02.01.2013 PASSED IN MVC NO.451/2012 ON THE FILE
THE XVIII ADDL. JUDGE, COURT OF SMALL CAUSES,
MEMBER, MACT-4, BANGALORE, AWARDING A
COMPENSATION OF RS.8,63,000/- WITH INTEREST AT 6%
P.A FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
******
IN MFA.CROB No.157/2013 (MV)
BETWEEN :
N BALAKRISHNA RAJU
S/O LATE R NARAYANARAJU
3
AGED ABOUT 52 YEARS
R/O NO.234, DBM ROAD
BEHIND CANARA BANK
CHIKKABALLAPURA - 562101
PRESENTLY R/AT NO.561
3RD A MAIN, NEAR GOVERNMENT
HIGH SCHOOL, HEBBAL
BANGALORE - 24 ...CROSS OBJECTOR
(BY SMT. SANDHYA. V. PRABHU, ADV.)
AND :
1. THE LEGAL MANAGER
UNITED INDIA INSURANCE COMPANY
NO.25, SHANKERNARAYANA BUILDING
M.G ROAD, BANGALORE - 01
BY ITS REGIONAL MANAGER
UNITED INDIA INSURANCE COMPANY
KRISHI BHAVAN, 5TH AND 6TH FLOOR
NRUPATHUNGA ROAD
BANGALORE - 560001.
2. S YANGAMA RAJU
R/AT 99, SHIVAKRUPA BUILDING
OPP. RAILWAY STATION
CHAMRAJPET. CHIKKABALLAPUR - 562101.
...RESPONDENTS
THIS MFA CROB IN MFA NO.6889/2013 IS FILED U/O
41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND
AWARD DATED 02.01.2013 PASSED IN MVC NO.451/2012,
ON THE FILE OF COURT XVIII ADDITIONAL JUDGE, COURT
OF SMALL CAUSES, MEMBER, MACT-4, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
4
THIS MFA & MFA CROB COMING ON FOR ORDERS,
THIS DAY, V.SRISHANANDA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Insurance Company has filed this appeal challenging the validity of the Judgment and Award dated 2nd January 2013 passed in MVC No.451/2012 on the file of Addl. MACT, Bangalore (CCH-4). On the same appeal, the claimants have filed cross-objection in MFA.CR.OB.No.157/2013 questioning the validity of the judgment insofar as quantum of compensation is concerned.
2. Brief facts which are necessary for disposal of these matters are as under:
A claim petition came to be filed under Section 166 of the Motor Vehicles Act contending that on 30.08.2011 at about 9.30 p.m., one Balakrishna Raju (hereinafter referred to as 'injured') was crossing the road in front of State Bank of Mysore on National Highway No.7, B.B.Road, 5 Chikkaballapur town, the rider of the motor-cycle bearing No.K-40-J-1188 came in a rash and negligent manner and dashed against the petitioner, whereby injured sustained grievous injuries and he was shifted to the hospital and he had to spend huge money towards his treatment and he lost his earning capacity and therefore, sought for awarding suitable compensation.
3. In response to the notice issued, owner of the offending vehicle and Insurance Company of the offending vehicle appeared before the Tribunal and filed written statement denying the petition averments in toto and sought for dismissal of the claim petition. Based on the rival contentions, the Tribunal raised the following issues:
"(1) Whether the petitioner proves that he meet with an RTA that occurred on 30.8.201 at about 9.30 p.m., in front of SBM, on NH 7, BB road, Chikkaballapur town and sustained injuries due to rash and negligent driving of motor vehicle bearing No.KA-40-J-1188? 6 (2) Whether the petitioner is entitled for compensation? If so, at what amount and from whom?(3) What order?"
4. In order to prove the claim petition averments, injured got examined himself as PW.1 and doctor who treated him as P.W.2 and relied on documentary evidence which were exhibited and marked as Exs.P.1 to P.33. On behalf of the respondents, there is no evidence placed on record.
5. On cumulative consideration of the oral and documentary evidence on record, the Tribunal allowed the claim petition in part and awarded a sum of Rs.8,63,000/- with interest It is that judgment which is under challenge.
6. Learned counsel, appearing for the appellant - Insurance Company Sri. O. Mahesh, vehemently contended that even though accident is denied in toto, the claimant did not prove the accident by independent evidence. He 7 further contended that there is unreasonable delay in reporting the incident to the police which raised sufficient doubt about the very incident itself and the implication of the offending motor-cycle. He further contended that the Tribunal ought to have considered the fact that there was no compliance of mandatory provisions of Section 134-C of the Motor Vehicles Act by the injured or compliance of Section 158(6) of the Motor Vehicles Act by the insured and concerned investigation agency and therefore, the award passed by the Tribunal is incorrect and sought for allowing the appeal. He further contended that having regard to the nature of injuries found on the body of the injured, the injuries could not have been caused by an accident involving two-wheeler.
7. Learned counsel for the appellant also contended that the medical bills are not properly proved and Tribunal allowing a sum of Rs.5,75,000/- on the head of medical and incidental charges, is incorrect. In support of his arguments, he has relied upon the decision rendered in THE REGIONAL OFFICE, UNITED INDIA INSURANCE 8 CO.LTD. vs. SMT.GAYATHRIDEVI AND OTHERS (MFA No.11443/2006 c/w.MFA Nos.11440/2006 and 10856/2006 (MV) and sought for remand of the matter by allowing the appeal and KONDA ANURADHA AND OTHERS vs. GOPI REDDY VENKAT REDDY AND ANOTHER (2008 SCC ONLINE AP 63).
8. He further contended that the police in active collusion with the injured, have filed a false chargesheet against the rider of the motor-cycle and sought for allowing the appeal.
9. Per contra, the learned counsel for the claimant contended that the Tribunal has taken into consideration the relevant materials on record, especially the complaint as well as the charge sheet and other police investigation papers and has rightly held that the claimant has sustained injuries by an accident involving the motor-cycle bearing No.KA-40-J-1188. The learned counsel for the claimant has further contended that the Tribunal has granted meager compensation by improperly computing the monthly income at Rs.1,500/- and sought for suitable enhancement. 9
10. In view of the rival contentions of the parties, the following points would arise for consideration:
(i) Whether the finding recorded by the Tribunal that the claimant sustained accidental injuries involving a motor-cycle bearing No.KA-40-J-1188 is erroneous?
(ii) Whether the claimant makes out a case for enhancement of the compensation or not?
11. The answer to the above points is in the negative for the following:
REASONS
12. In the case on hand, in order to prove the accident involving the motor cycle bearing No.KA-40-J-
1188, the Tribunal considered the oral evidence of P.W.1 coupled with the documentary evidence placed on record in the form of Exs.P1 to P3 - certified copies of the FIR, complaint, chargesheet, Ex.P5-Panchannama, Ex.P6- Seizure Panchanama, Spot Sketch-Ex.P7 and Motor Vehicles Report-Ex.P8. Tribunal dealt with the issue of 10 involvement of the offending vehicle in Paragraphs 8 to 10 of the impugned judgment. In the cross-examination of P.W.1, suggestion made by the Insurance Company that there was a deliberate delay is denied by P.W.1. So also, suggestion made to P.W.1 that the injury sustained by him is on account of self-skid is also denied by P.W.1. However, in the next-breadth, suggestion is also made that some other vehicle has caused the accident. Police, after thorough investigation, has filed chargesheet against the rider of motor-cycle.
13. Insurance Company did not lead any evidence on record to controvert the evidence placed by the claimants on record. At least steps should have been taken to summon the rider of the motor-cycle or the Investigating Officer to find out on what basis the Investigating Officer apprehended the motor-cycle bearing No.KA-40-J-1188, especially when there is no mention of the registration number of the offending two-wheeler in complaint.
14. Insofar as the argument that the case requires a remand by setting aside the finding and permit the 11 Insurance Company to examine the Investigating Officer is concerned, learned counsel referred to the decision of this Court in MFA No.11443/2006 C/W.MFA Nos.11440/2006, 11442/2006, 11442/2006 and 10856/2006 (MV) dated 18th July 2012, wherein it is referred to the Judgment of SMT.REVATHI vs. SMT.KIRAN (ILR 2010 KAR 5394) and NATIONAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS REGIONAL MANAGER vs. Smt. PARVATHAMMA AND OTHERS reported in ILR 2009 KAR 3773.
15. The relevant portion of the decision referred to by the learned counsel for the Insurance Company is culled out hereunder for ready reference:
"At this juncture, counsel for insurance company relied upon the judgment rendered by Division Bench of this Court in the matter of Smt. Revathi & Anr.,-
vs- Smt. Kiran P. Suvarna & Anr., reported in ILR 2010 KAR 5394, wherein it is held that in a situation where the involvement of vehicle was not available at the initial stage and subsequently, if vehicle involved is apprehended and against which charge sheet is filed, claimant should have examined the 12 Investigation Officer to substantiate the same. The relevant portion of said judgment reads as under: "The said claim petition had come up for consideration before the Tribunal. The Tribunal after assessing the oral and documentary evidence and other materials available on file, has dismissed the claim petition holding that the driver of the Maruti Omni Van bearing No. KA.19/N-4461 was not involved in the accident and in spite of giving sufficient opportunity to the appellants, they have not examined the Investigating Officer."
28. In support of his contentions, counsel for appellant also relied upon the decision in the matter of National Insurance Company Limited, Represented by its Regional Manager -vs- Smt. Parvathamma & Ors., reported in ILR 2009 KAR 3773.
29. Per contra, counsel for respondents/claimants would rely upon the judgment rendered by Apex Court in the matter of Bimla Devi & Ors., -Vs- Himachal Road Transport Corporation and Ors., reported in 2009 (2) TAC 693 (SC), wherein it is held as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular 13 manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
16. It is pertinent to note that in REVATHI's case supra, the claim petition was rejected and the Division Bench noticed that for the failure on the part of the counsel who represented the claimants, the legitimate rights of the claimants should not suffer and therefore, remanded the matter for fresh consideration by permitting the claimants to examine the Investigating Officer. But in the case on hand, there is a finding recorded by the Tribunal that the motor-cycle bearing No.KA-40-J-1188 is involved in the accident in the absence of any contra evidence placed by the Insurance Company on record. Therefore, we are of the opinion that the decision relied on by the learned counsel for the Insurance Company can be distinguished with facts and circumstances of the case on hand. 14
17. There is an explanation offered by the P.W.1 that he was in the hospital for two days and his cousin has lodged a complaint. Therefore, mere delay in lodging the compliant or non-mentioning of the vehicle number in the complaint marked at Ex.P2 would not ipso facto result in an inference that the motor-cycle bearing No.KA-40-J-1188 was not involved in the accident. The Insurance Company did not get the matter investigated through their investigators. All these factors when viewed cumulatively and after reappreciation of the material on record, we do not find any good grounds in setting aside the finding recorded by the Tribunal that the accidental injuries sustained by Balakrishna Raju is by self-skid or by some other vehicle other than the motor-cycle bearing No. KA- 40-J-1188. Accordingly, Point No.1 is answered.
18. Insofar as quantum of compensation is concerned, the Tribunal has taken into account the monthly income notionally at Rs.10,000/- and taken disability factor at 15% and awarded sum of Rs.1,98,000/-. On account of pain and suffering, the Tribunal has awarded a 15 sum of Rs.40,000/- and on account of loss of amenities, Tribunal has awarded a sum of Rs.20,000/-. On medical and incidental charges, the Tribunal has taken into consideration the medical bills which are produced at Ex.P12 to the tune of Rs.5,62,802/- and added about Rs.12,198/- and odd and granted Rs.5,75,000/- In the considered opinion of this Court, said quantum is perfectly justifiable in the facts and circumstances of the case on hand, especially when the notional income is taken at Rs.10,000/- as against Rs.6,000/- which normally this Court and Lok Adalaths would take into consideration in the absence of formal evidence as to the proof of income. Hence, Point No.2 is answered accordingly.
19. In view of the findings on Point Nos.1 and 2 as above, following order is passed:
ORDER MFA filed by the Insurance Company and the MFA.CROB filed by the claimant are dismissed.16
Amount in deposit is ordered to be transmitted to the Tribunal forthwith.
Balance amount is ordered to be deposited by Insurance Company within six weeks from the date of receipt of a certified copy of this order.
Office to draw modified award
accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
Bnv/PL*