Karnataka High Court
United India Insurance Co Ltd vs Sri Muniyappa Since Deceased ... on 7 June, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.2083/2013 (MV)
BETWEEN:
UNITED INDIA INSURANCE CO., LTD.,
REGIONAL OFFICE,
# 5 AND 6TH FLOORS,
KRISHI BHAVAN, HUDSON CIRCLE,
BENGALURU-560 001.
REP. BY ITS MANAGER
SRI. K. CHANDRASHEKAR
... APPELLANT
(BY SRI S.KRISHNA KISHORE, ADVOCATE)
AND:
1. MUNIYAPPA, SINCE DECEASED
REPRESENTED BY HIS LRS,
A) RADHAMMA
D/O. LATE MUNIYAPPA,
AGED ABOUT 45 YEARS,
W/O SRI. MANJUNATHA.
B) SRI. MANJUNATHA
AGED ABOUT 46 YEARS,
C) KUM. PADMA
AGED ABOUT 20 YEARS,
D/O. SRI. MANJUNATHA,
2
D) MR. DODDANNA
AGED ABOUT 19 YEARS,
S/O. SRI. MANJUNATHA,
ALL ARE RESIDING AT
No.53/7, YELLUKUNTE,
MANGAMMANA PALYA,
BOMMANAHALLI POST,
BENGALURU - 560 0068.
2. MR. MOHAMMED IBRAHIM
S/O. MR. ANNIR PASHA
AGED ABOUT 44 YEARS
RESIDING AT No.9, 7TH CROSS
MAGADI ROAD
BENGALURU - 560 028.
... RESPONDENTS
(NOTICE TO R2 SERVED AND UNREPRESENTED.
VIDE ORDER DATED 26.03.2018, NOTICE TO R1(A-D) HELD
SUFFICIENT)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.11.2012
PASSED IN MVC.NO.3168/2009 ON THE FILE OF THE XI
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU,
AWARDING A COMPENSATION OF Rs.1,48,000/- WITH
INTEREST @ 6% PER ANNUM FROM THE DATE OF PETITION TILL
REALIZATION.
THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
3
JUDGMENT
Though the matter is listed for admission today, with the
consent of the learned counsel for the appellant, it is taken up
for final disposal.
This appeal is filed challenging the judgment and award
dated 28.11.2012, passed in M.V.C.No.3168/2009 on the file of
the XI Additional Judge, MACT, Court of Small Causes,
Bengaluru, SCCH-12, ('the Tribunal' for short) allowing the claim
petition in part granting the compensation of Rs.1,48,000/- with
6% interest and fastening the liability on the Insurance
Company.
2. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case is that the
claimant/injured met with an accident on 16.03.2009 at about
8.30 a.m. due to the rash and negligent driving of a Maruthi Van
bearing registration No.KA-01-N-5408, and for having dashed
against him. On account of the accident, he sustained grievous
injuries and he was shifted to the hospital, wherein he was
subjected to surgery. As a result of the injuries sustained by
him, he suffered permanent disability. The claimant filed claim
petition seeking compensation and this clam petition was
resisted by the Insurance Company by filing detailed statement
of objection disputing the very accident and the manner of the
accident and also the disability. The Insurance Company in para
No.8 of the objection statement, took the specific defence that
there are contradictions in the medical records of the Reddy
hospital, wherein it is mentioned that the injured sustained
injuries due to the accident that took place on 19.03.2009 and in
the very same document of the Reddy Hospital, it finds mention
that he was admitted to hospital on 22.03.2009 and he was
discharged on 08.04.2009. In the said medical records, the age
of the claimant is mentioned as 70 years, but in the claim
petition, the age of the claimant is mentioned as 60 years
whereas the actual age of the claimant is 75 years.
4. The claimant, in order to substantiate his claim,
examined himself as P.W.1 and the doctor as P.W.2 and got
marked documents at Exs.P1 to P11. The Insurance Company
has not led any evidence, however, confronted the wound
certificate and got marked at Ex.R1. The Tribunal, after
considering both oral and documentary evidence placed on
record, awarded the compensation of Rs.1,48,000/- with interest
at the rate of 6% per annum. Being aggrieved by the judgment
and award of the Tribunal and fastening of the liability on the
Insurance Company, the Insurance Company has filed the
present appeal.
5. The main contention of the learned counsel for the
appellant/Insurance Company in this appeal is that the Tribunal
has failed to take note of the fact that the claimant had met with
an accident on 16.03.2009 due to hit by Maruthi Van bearing
registration No.KA-01-N-5408. Learned counsel appearing for
the appellant also would vehemently contend that the medical
records are contrary to the very pleadings of the claimant and
the evidence adduced by the claimant is also contradictory to the
medical records. There is no clear evidence that he suffered
accidental injuries in the accident that took place on 16.03.2009,
which involves the Maruthi Van bearing registration No.KA-01-N-
5408. Learned counsel appearing for the appellant would also
vehemently contend that in the affidavit, the claimant claims
that he took treatment at Aswad Hospital and the medical
records of the Reddy Hospital also shows that he took the
treatment elsewhere i.e., at Aswad Hospital. Learned counsel
also brought to the notice of this Court, the complaint, wherein
the claimant has mentioned that the driver of the Maruthi Van
himself took the claimant to the Reddy hospital. He had assured
that he would meet the medical expenses and proposed for
compromise,. Hence, there was delay in lodging the complaint.
Learned counsel would vehemently contend that in the cross-
examination of P.W.1, he has categorically admitted that the
driver of the Maruthi Van did not take him to the Reddy hospital.
6. Learned counsel also brought to the notice of this
Court that the injured was taken to the hospital by his son
whose name is mentioned in the medical records as Govindaraju
and the relationship between the injured and the attendant is
clearly mentioned as father and son. Learned counsel also
would vehemently contend that the injured was taken to the
Reddy Hospital on 22.03.2009 and not on the date of the
accident. Having considered all these materials on record,
learned counsel would submit that the accident itself is doubtful,
particularly, the involvement of the vehicle in the accident.
Hence, it requires interference of this Court.
7. This Court issued notice against LRs of the first
respondent, the claimant, who passed away during the pendency
of this appeal. Inspite of service of notice, the legal heirs of the
respondent did not chose to appear before this Court and contest
the matter.
8. Having heard the arguments of the learned counsel
for the appellant and also on perusal of the records, the points
that would arise for the consideration of this Court are:-
(i) Whether the claimant sustained injuries on
account of involvement of the vehicle
Maruthi Van bearing registration No.KA-01-
N-5408 on 16.3.2009 at about 8.30 a.m.
and whether the Tribunal has committed an
error in coming to the conclusion that the
accident has been proved and it requires
interference of this Court ?
(ii) What order?
Points No.1 and 2:-
9. Having heard the learned counsel for the appellant
and also on perusal of the records, particularly, the claim
petition, a specific allegation is made that the offending vehicle
was involved in the accident that took place on 16.3.2009 at
about 8.30 a.m. This claim petition is filed on 12.05.2009 and
Insurance Company took specific defence in the statement of
objection that the medical records are contrary to each other.
P.W.1-claimant, in his evidence, categorically stated that the
accident had occurred on 16.03.2009 and he was taken to
Aswad Hospital, Bengaluru for treatment, where he was
admitted as an inpatient from 16.03.2009 to 21.03.2009 and
thereafter, he was shifted to Reddy hospital. In support of the
said claim, the claimant has not placed any material before the
Tribunal to show that he was an inpatient in Aswad hospital from
16.03.2009 to 21.03.2009. It is also pertinent to note that in
the complaint, which is marked as Ex.P2, the claimant claims
that he was taken to Reddy hospital directly by the driver of the
Maruthi Van and he assured to meet the medical expenses and
not to give any complaint so that they could compromise the
matter, but he did not turn up. It is relevant to note that the
complaint is lodged on 09.04.2009 after being discharged from
Reddy hospital. It is important to note that in the cross-
examination, P.W.1 categorically admits that driver of the
Maruthi Van did not take him to Reddy hospital. The records
also reveal that the injured was taken to Reddy hospital on
22.03.2009 by his son one Govindaraju. No doubt, in the case
sheet of the Reddy hospital, it is mentioned that the injured had
taken treatment elsewhere that is at Aswad Hospital.
10. Learned counsel appearing for the Insurance
Company would vehemently contend that in the Reddy hospital
medical records and in the wound certificate, it is mentioned that
the claimant sustained injuries on 19.03.2009. No doubt, there
are reference in the documents that he had sustained injuries on
16.03.2009, but the doctor in his evidence clarifies that by
mistake, the date is mentioned as 19.03.2009 which ought to
have been 16.03.2009. On perusal of case sheet, though it was
mentioned earlier as 19.03.2009, the same is corrected as
16.03.2009. No doubt, there are discrepancies in the medical
records in relation to altering the date.
11. Now the question before this Court is whether he had
sustained injuries in the accident that took place on 16.03.2009
due to the involvement of the vehicle bearing registration No.KA-
01-N-5408. It is also important to note that the Insurance
Company neither examined any witnesses nor placed any
documentary proof before the Court to rebut the case of the
claimant, denying the accident and involvement of the vehicle in
the accident. It is also pertinent to note that even in the
absence of adducing any evidence, whether the documents
placed before the Tribunal inspires the confidence of the Court in
coming to the conclusion that the particular vehicle has been
involved in the accident is the question. There are contradictions
in the evidence of P.W.1. Though he claims that he was an
inpatient at Aswad hospital from 16.03.2009 to 21.03.2009, no
document is placed before the Court. If such document is
placed before the Court and if any entry is made in the Aswad
hospital records stating that this vehicle has been involved in the
accident, then this Court would have considered the same.
Though P.W.1 claims that he took treatment from 16.03.2009 to
21.03.2009, no material is placed before the Court in support of
the said contention. Immediately after the accident, if the
claimant had given the history of the accident involving vehicle,
then, the Tribunal could have considered the same but the same
has not been done.
12. It is also important to note that though the alleged
accident had taken place on 16.03.2009, for the first time, the
complaint was given on 09.04.2009 by the claimant after being
discharged from Reddy hospital. If really, he had taken
treatment at Aswad hospital, it would have been mentioned in
the complaint at Ex.P2 that he took treatment at Aswad hospital,
which is not forthcoming in Ex.P2. The complaint was lodged on
09.04.2009 by the complainant but he claims in the complaint
marked at Ex.P2 that the driver of the Maruthi Van himself took
the injured to the Reddy hospital and hence, the very
involvement of this vehicle in the accident on 16.03.2009 is
doubtful. No doubt, the Insurance Company has not adduced
any evidence rebutting the case of the claimant and the very
admission of P.W.1 that the driver of the Maruthi Van has not
taken him to hospital goes against his own case and Ex.P2 is
also contrary to his own evidence and so also there are
discrepancies in the medical records with regard to mentioning
the date of the accident due to which the claimant had sustained
injuries.
13. I have already pointed out that by mistake the date
of accident is mentioned as 19.03.2009 in the medical records of
the Reddy hospital as per the evidence of the doctor P.W.2. But
insofar as the fact that the said vehicle was involved in the
accident as alleged on 19.3.2009, no material is placed on
record and none of the medical records of Aswad hospital are
placed before the Court. Hence, it is clear that the Tribunal
ought to have considered the admission elicited from the mouth
of P.W.1. When the medical records of Aswad hospital has not
been placed before the Court, the Tribunal ought to have
inferred that the Maruthi Van bearing registration No.KA-01-N-
5408 has not been involved in the accident. Mere filing of the
charge sheet is not enough. As I have already pointed out that
the complaint is given after lapse of almost 20 days of the
accident and the Insurance Company has disputed only the fact
of very involvement of the particular vehicle in the accident. In
order to come to the firm conclusion that this vehicle has been
involved in the accident, no other materials are placed before
the Tribunal. The claimant fails to place the material before the
Tribunal in support of his claim that this vehicle has been
involved in the accident and also for a period of almost 7 days,
no documents disclosed that this vehicle was involved in the
accident. It is for the first time, the vehicle number is
mentioned on 09.04.2009 in the complaint lodged by the
claimant. The contents of Ex.P2 are contrary to the evidence
adduced by the claimant. When such being the case, the
Tribunal ought not to have come to the conclusion that claimant
has proved the accident and involvement of this vehicle in the
accident by answering issue No.1 when the very accident is
doubtful. Since the claimant has not taken treatment from
16.03.2009 to 21.03.2009 till he was taken to Reddy hospital on
22.3.2009, it creates suspicion in the mind of the Court. Hence,
I am of the opinion that the Tribunal has committed an error in
allowing the claim petition and granting compensation in the
absence of proving the very accident and involvement of the
vehicle in the accident by answering issue Nos.1 and 2 as
affirmative. Hence, it requires interference of this Court by
setting aside the judgment and award passed by the Tribunal.
Accordingly, I answer point No.1 in the affirmative.
14. In view of the discussion made above, I pass the
following:-
ORDER
(i) The appeal is allowed.
(ii) The judgment and award passed by the
Tribunal is hereby set aside. Consequently, the
claim petition of the claimant is dismissed.
(iii) The amount in deposit, if any, made by
the Insurance Company before this Court or the
Tribunal, is ordered to be refunded to the appellant
on proper identification.
(iv) The Registry to transmit the TCR
forthwith to the concerned Tribunal.
Sd/-
JUDGE
PYR
