Karnataka High Court

The Branch Manager vs Raghu on 19 January, 2021

Author: Ashok G.Nijagannavar

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 19TH DAY OF JANUARY, 2021

                     BEFORE

 THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR

MISCELLANEOUS FIRST APPEAL NO.8169 OF 2013 (MV-I)
                      C/W
MISCELLANEOUS FIRST APPEAL NO.10056 OF 2013 (MV-I)

IN M.F.A.NO:8169/2013:

BETWEEN:

THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
BRANCH OFFICE, LAKSHMI BAZAR,
CHITRADURGA TOWN,
BY NATIONAL INSURANCE CO.LTD.,
REGIONAL OFFICE, NO.144,
SUBHARAM COMPLEX, M.G.ROAD,
BANGALORE-560001.
BY ITS MANAGER.                     ...APPELLANT

(BY SRI O MAHESH, ADVOCATE)

AND:

  1. RAGHU,
     AGED ABOUT 22 YEARS,
     S/O.MOUNESHWARAPPA @ THIMMAPPA,
     R/O.SEERAPANAHALLI VILLAGE,
     TALYA HOBLI,
     HOLALKERE TALUK,
     CHITRADURGA DISTRICT - 577501.

  2. M YARAGUNTAPPA,
                           2


       AGED 32 YEARS,
       S/O.CHANNABASAPPA,
       R/O.NANDANAHOSUR VILLAGE,
       HORAKEREDEVARAPURA POST,
       HOLALKERE TALUK,
       CHITRADURGA
       DISTRICT-577501.            ...RESPONDENTS

(BY SRI B M SIDAPPA, ADVOCATE FOR R1
 R2 SERVED)
                         ****

      THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:24.06.2013 PASSED IN
MVC NO.335/2011 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDITIONAL MACT, HOLALKERE, AWARDING
COMPENSATION OF RS.5,49,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

IN M.F.A.NO:10056/2013:

BETWEEN:

RAGHU,
S/O MOUNESHWARAPPA @ THIMMAPPA,
FITTER, 22 YEARS,
R/O SEERAPANAHALLI VILLAGE,
TALYA HOBLI,HOLALKERE TALUK,
CHITRADURGA DISTRICT-577 526.          ...APPELLANT

(BY SRI SIDDAPPA B M, ADVOCATE)

AND:

  1. YARAGUNTAPPA.M,
     S/O CHANNABASAPPA,
     AGED ABOUT 32 YEARS,
     OWNER OF CYCLE BEARING
     REG:NO.KA-16-V-0119
                             3


     R/O NANDANAHOSUR VILLAGE,
     HORAKEREDEVARAPURA POST,
     HOLALKERE TALUK- 577 526

  2. THE BRANCH MANAGER,
     NATIONAL INSURANCE CO LTD.,
     BRANCH OFFICE,
     LAKSHMI BAZAR,
     CHITRADURGA TOWN-577 501,
     PY.NO.3510073110620196808.            ...RESPONDENTS

(BY SRI O MAHESH, ADVOCATE FOR R2
 VIDE ORDER DATED: 02.12.2015 - NOTICE
 TO R1 DISPENSED WITH)

                        ****
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 24.06.2013 PASSED IN
MVC NO.335/2011 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDITIONAL MACT, HOLALKERE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THESE APPEALS HAVING BEEN HEARD THROUGH
VIDEO CONFERENCE AND RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:


                    JUDGMENT

M.F.A. No.8169/2013 has been filed by the

appellant - Insurance Company; while M.F.A.

No.10056/2013 has been filed by the injured claimant.

Both appeals have arisen out of the judgment and

award dated 24.06.2013 passed in M.V.C. No.335/2011

by the Senior Civil Judge & Additional MACT, Holalkere.

The Insurance Company has assailed the judgment and

award fastening the liability on the Insurance Company

to pay the compensation, while the injured claimant has

sought for enhancement of compensation and for

modification of the impugned judgment and award.

2. The facts briefly stated are that, on

08.05.2011, evening at about 5.00 p.m., the injured

claimant was going on a motor cycle bearing registration

No.KA-16-V-0119 as a pillion rider. The said motor

cycle was driven by one Siddappa. When they were

going near Electronic City, the rider of the motor cycle

drove the motor cycle in a rash and negligent manner

over the road hump. As a result of which, the petitioner

fell down and sustained grievous injuries on head and

other parts of the body. The injured was shifted to

Sparsh Hospital; after first aid, he was taken to Popular

Hospital where he was admitted as inpatient for 10

days. After discharge form the said hospital, he has

taken treatment in Basaveshwara Medical College and

Research Hospital, Chitradurga for a period of two

months. Due to the injuries caused in the accident, the

petitioner has endured lot of pain and has also suffered

permanent disability. The respondent No.1 being the

owner of the motor cycle and respondent No.2 being the

insurer are liable to pay the compensation.

3. On service of notice, the respondent Nos.1

and 2 appeared through their respective counsel and

filed their written statement denying the averments

made in the claim petition and also the liability to

satisfy the award. The respondent No.2 has contended

that the petitioner has not suffered any injuries in the

accident said to have been caused by the motor cycle,

but a false case has been registered with an intention to

claim compensation.

4. On the basis of the rival pleadings, the

Tribunal has framed the following issues:

i. Whether the petitioner proves that he had sustained injuries in road traffic accident occurred on 08.05.2011 at about 5.00 p.m., near Electronic City, Veerasandra Village, Bangalore involving motor cycle bearing reg. No.KA-16-V-0119 belonging to respondent No.1 and insured with respondent No.2?

ii. Whether the petitioner proves that the accident has occurred only due to rash and negligent driving of the said vehicle by its driver?

iii. Whether the petitioner is entitled for compensation? If so how much and from whom?

iv. What order / award?

5. On appreciating the oral and documentary

evidence placed on record, the Tribunal has come to the

conclusion that there is proper explanation with regard

to delay in lodging the FIR. The evidence placed by the

respondent No.2 - Insurance Company is not sufficient

to disbelieve the case of the claimant and has further

held that the accident was due to the rash and negligent

riding of the rider of the motor cycle and has awarded

total compensation of Rs.5,49,000/- with interest at 6%

per annum.

6. The Insurance Company has challenged the

finding of the Tribunal regarding liability to pay the

compensation contending that the Tribunal has

committed error in fixing the liability on the appellant -

Insurance Company when there is evidence to show

that the motor cycle bearing registration No.KA-16-V-

0119 has been involved in the accident on the basis of a

false complaint filed by the insured viz., the owner of

the motor cycle. The Tribunal has failed to consider

that the chargesheet was filed against one Siddappa

who is the brother of the insured and a close relative of

injured to saddle the liability on the Insurance

Company. The Tribunal has also failed to consider that

the rider of the motor cycle being a close relative has not

taken the injured claimant to the hospital. This

doubtful circumstance clearly goes to show that the

motor cycle has been deliberately involved in the said

accident. The Tribunal has failed to appreciate

Exhibits-R2 to R4. It is also contended that the

compensation awarded is also exorbitant under several

heads in the absence of evidence.

7. The appellant - claimant in M.F.A. No.

10056/2013 submitted that the compensation awarded

by the Tribunal is inadequate. The Tribunal has failed

to consider the loss of income due to the disability

caused to the injured claimant and no compensation

has been awarded towards loss of future prospects.

8. Heard learned counsel for the appellant -

Insurance Company in M.F.A. No.8169/2013 and

learned counsel for the appellant - injured claimant in

M.F.A. No.10056/2013. Perused the judgment and

award passed by the Tribunal.

9. Having heard the submission of the learned

counsels and on perusal of the judgment and award of

the Tribunal, the following points would arise for

consideration:

i. Whether the Tribunal was justified in

fastening the liability on the Insurance

Company?

ii. Whether the compensation awarded by the

Tribunal calls for modification, in other words,

whether the claimant is entitled for additional

compensation?

iii. What order?

10. With regard to the first point namely

fastening of the liability on the Insurance Company is

concerned, the learned counsel for the appellant -

Insurance Company would contend that claim is not

maintainable as the petitioner himself being the rider

was responsible for the accident. If the claimant was a

pillion rider, then it is very strange as to why the rider

failed to notice when the claimant fell down. The

insured being the close relative of the injured claimant

has taken active part in manipulating the records. It is

contended that the Tribunal has failed to consider the

delay caused in filing the complaint and also the

doubtful circumstance that the owner of the motor cycle

namely Eraguntappa who is the elder brother of the

rider of the motor cycle and also close relative of the

injured claimant has filed the complaint. If really the

rider of the motor cycle was riding the motor cycle as on

the date of the alleged accident, he would have taken

the injured claimant to the hospital, but the medical

records disclose that the injured was taken to the

hospital by some by-standers who are unknown

persons. Thus, it is evident that the motor cycle has

been involved deliberately by making a false complaint

with an intention to fix the liability on the Insurance

Company. In support of the aforesaid contention, the

learned counsel has relied on a decision reported in

M.F.A. No.201689/2016 (MV) passed by this Court.

11. Per contra, the learned counsel for the

injured claimant submitted that there is no inordinate

delay in filing the complaint. The insured having

received the information about the accident after two

days he has gone to the hospital and lodged a complaint

against the rider of the motor cycle. There is no

doubtful circumstance to disbelieve the facts put-forth

by the claimant. Since the injured was unconscious, he

could not reveal the necessary information immediately.

Merely because some by-standers or unknown persons

have admitted the injured to the hospital instead of

rider of the motor cycle, is not a ground to disbelieve the

case of the petitioner. The medical records disclose that

he was in unconscious condition, as such, there was no

occasion to give the information to the police. The

medical records clearly disclose that the claimant has

sustained the injuries in a road traffic accident. The

grounds urged by the Insurance Company are

untenable. In support of his contention, the learned

counsel has relied on a decision in the case of Ravi v.

Badrinarayan and others reported in AIR 2011 SCW

1530.

12. In view of the submission made by the

learned counsel for the Insurance Company, this Court

has gone through the trial Court records and the oral

evidence. It is the case of the petitioner that on

08.05.2011, he was going on a motor cycle as a pillion

rider. Due to the rash and negligent riding of the rider

of the motor cycle on the road hump, the claimant fell

down and sustained grievous injuries. There are no

records to show that the injuries sustained by the

claimant is in no way connected with the accident dated

08.05.2011. Even the records produced by the

Insurance Company namely Exhibits-R2 to R4 viz.,

Accident Register maintained by Sparsh Hospital, Police

Intimation and Outpatient record disclose that the

claimant was admitted to the hospital on 08.05.2011

with a history of road traffic accident that happened on

Igloor Road, Electronic City. The injured claimant

namely PW1 has stated as to how the accident took

place. Even though this witness is cross-examined,

nothing is elicited to prove that he has not sustained

the injuries in the accident caused by the rider of the

motor cycle. In this regard, the suggestions made in the

cross-examination are denied. Merely because the

insured (owner of the motor cycle) and the rider of the

motor cycle are close relatives, the same cannot be

viewed as a doubtful circumstance to disbelieve the

claim of the petitioner. There is no convincing evidence

to show that the vehicle has been involved with an

intention to claim compensation. As far as delay is

concerned, the documents placed on record disclose

that there is a delay of three days in filing the complaint

and there is explanation in the complaint filed by the

insured.

13. Considering the oral and documentary

evidence, the trial Court has come to the conclusion

that there is proper explanation for the delay caused in

filing the complaint. In a decision relied on by the

learned counsel for the claimant in the case of Ravi v.

Badrinarayan and others reported in AIR 2011 SCW

1530, it is observed as under:

"20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give

more importance to get the victim treated rather than to rush to the Police Station.

Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.

21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words,

although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."

14. In a decision relied on by the learned

counsel for Insurance Company in M.F.A. No.

201689/2016 (MV), the wife of the deceased had

forthrightly admitted that the owner of the offending

vehicle was the own brother of the deceased himself and

in the complaint lodged immediately after the accident,

the vehicle was shown as unknown vehicle and not even

the registered number of the vehicle was indicated

therein. In the said case, there was a large gap between

the date of the accident and the date of seizure of the

vehicle i.e., about 103 days. Even the evidence of PW2

who is said to be the eye witness has not confirmed that

he was the eye witness to the accident and he was not

present at the spot at the time of the accident.

Considering these factual situation and evidence placed

on record, it is held that the vehicle has been planted or

falsely involved to claim compensation.

15. In the present case, the Tribunal on

appreciation of the entire evidence placed on record has

come to the conclusion that the accident was caused by

the rider of the motor cycle by name Siddappa. The

case on hand is distinguishable and the aforesaid

decision is not applicable to the facts of the present

case.

16. The next point is regarding quantum of

compensation. The Tribunal has awarded compensation

as detailed below:

Sl.           Particulars                   Amount
No.                                           Rs.
01 Towards pain and sufferings               60,000.00
02   Treatment expenses                    3,19,000.00
03   Loss of income during treatment         30,000.00
     and laid up period (Rs.5,000/- x 6
     = Rs.30,000/-)
04   Towards attendant and                   40,000.00
     nourishment charges
05   Towards the conveyance and              20,000.00
     incidental charges
06   Loss of amenities                       60,000.00
07   Future treatment expenses               20,000.00
                 TOTAL                     5,49,000.00

17. The main grievance of the claimant is that

the compensation has not been awarded towards future

loss of earning and even the income of the claimant has

not been properly considered.

18. It is pertinent to note that the Tribunal on

considering the evidence on record, has noticed that the

claimant has not produced any document that he was

working as a fitter in a private Company and no salary

certificate has been produced to prove his employment

or income. Considering this aspect, the Tribunal has

taken the monthly income of the injured at Rs.5,000/-

and has awarded compensation of Rs.30,000/- towards