Karnataka High Court
The Legal Manager United India vs N Balakrishna Raju on 4 January, 2021
Author: Alok Aradhe Srishananda
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,
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?
(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
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
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.
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
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
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
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
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.
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
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.
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*
