M/S United India Insurance ... vs Sharanabasappa M N
2021 Latest Caselaw 2265 Kant

                                 1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 16TH DAY OF JUNE, 2021

                           BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

                   M.F.A.NO.9453/2013 (MV)

BETWEEN:

M/S. UNITED INDIA INSURANCE COMPANY LTD.,
REGIONAL OFFICE,
6TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD,
BENGALURU - 560 001.
REP. BY ITS MANAGER.
                                           ... APPELLANT
             (BY SRI A.M.VENKATESH, ADVOCATE)

AND:

1.     SHARANABASAPPA M.N,
       S/O. MALKAPPANATHI,
       AGED ABOUT 27 YEARS,
       R/AT No.187, KALTHANAGARA,
       GULBARGA-585104.

       PRESENTLY R/AT. No.531/144,
       150 FT. RING ROAD,
       H.S.R. LAYOUT,
       AGARA,
       BENGALURU - 560 102.

2.     BANU SOLOMAN,
       R/AT. No.8, 15TH CROSS,
       J.C.NAGAR,
       M.L.PURAM,
                                2



      BENGALURU-560 086.
      (RC OWNER OF CAR BEARING
      REG. No.KA-01/MB-240)
                                               ... RESPONDENTS

     (R1 SERVED THROUGH PAPER PUBLICATION AND HELD
          SUFFICIENT VIDE ORDER DATED 27.03.2019
                       R2 IS SERVED)

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 30.08.2013
PASSED IN MVC.NO.4421/2012 ON THE FILE OF THE XX
ADDITIONAL SMALL CAUSE JUDGE & XVIII ADDITIONAL ACMM,
MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF
Rs.1,64,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION (EXCEPT FOR THE AMOUNT OF
FUTURE MEDICAL EXPENSES OF Rs.15,000/-).

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        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 30.08.2013, passed in M.V.C.No.4421/2012 on the file of

the Motor Accident Claims Tribunal, XX Additional Small Causes

Judge, Bengaluru, SCCH-22 ('the Tribunal' for short) questioning

the liability and also the quantum of compensation.

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 met

with an accident on 22.10.2011, for which he took treatment at

Sparsh Hospital from 22.10.2011 to 26.10.2011. He also

underwent surgery and discharged with an advice for follow up

treatment. A claim petition came to be filed by the claimant

claiming the compensation. It is his claim that he had spent an

amount of Rs.75,000/- towards medical and other incidental

expenses. As a result of the injuries sustained by him, he

suffered permanent disability. The Insurance Company resisted

the claim petition by filing the objection statement and in the

objection statement took a defence that the liability is subject to

the terms and conditions of the policy. The second respondent

also denied that the driver of the car was holding a valid and

effective driving licence at the time of the accident. The second

respondent also denied the accident occurred due to the rash

and negligent driving of the driver of the car and also the age

and occupation of the petitioner. The Insurance Company

contended that the compensation claimed by the claimant is

exorbitant.

4. The claimant, in order to substantiate his contention

examined himself as P.W.1 and also examined the doctor as

P.W.2 and got marked the documents at Exs.P1 to P13. On the

other hand, the respondents examined one witness as R.W.1 and

got marked documents Exs.R1 to R6. The Tribunal, after

considering both oral and documentary evidence, allowed the

claim petition in part granting compensation of Rs.1,64,400/-

with interest at the rate of 6% per annum from the date of

petition till realization and fastened the liability on the Insurance

Company. Being aggrieved by the said award, the present

appeal is filed before this Court challenging the quantum as well

as the liability.

5. The main contention urged in the appeal

memorandum is that the Tribunal failed to consider the material

on record and ought to have observed that even though

immediately the claimant was taken to Sparsh Hospital, they

have not mentioned the number of the car alleged to have been

involved in the accident. It is also contended that in the MLC

Register, the details of the vehicle has not been mentioned and

the doctor, who has been examined as P.W.2 also categorically

admitted that the vehicle number is not mentioned. They never

sent any intimation mentioning the name of the vehicle involved

in the accident. These are all the aspects which has not been

considered by the Tribunal.

6. Learned counsel appearing for the appellant would

vehemently contend that the complaint was lodged after 5 days

of the accident and information was given by the brother of the

injured, in the hospital. If the injured was, aware of the number

of the vehicle, which caused the accident, he could have well

informed the hospital authorities or his brother earlier and could

have immediately lodged the complaint. The delay in lodging

the complaint definitely gives a doubt and only an afterthought

in collusion with the owner of the vehicle, the present vehicle is

implicated in the case. The Tribunal also not considered the

documents at Exs.R1 to R5 and has erroneously fastened the

liability on the Insurance Company.

7. Learned counsel would vehemently contend that the

compensation awarded by the Tribunal is on the higher side.

The Tribunal taking the income of the injured at Rs.4,500/-

assessed the future loss of income at Rs.81,000/- and also erred

in taking the disability at 10% towards the future loss of income.

This Court issued notice against the claimant and inspite of

service of notice, the claimant did not chose to appear before

this Court and contest the appeal.

8. Having heard the arguments of the learned counsel

for the appellant and on perusal of the records, the points that

would arise for the consideration of this Court are:-

      (i)      Whether the Tribunal has committed an
               error   in   fastening   the   liability   on   the
               Insurance     Company     in   coming      to   the
               conclusion that the vehicle in question has
               been involved in the accident ?




      (ii)      Whether the Tribunal has committed an
                error   in      awarding   the    exorbitant
                compensation as contended in the appeal ?


      (iii)     What order?



Point No.1:-

9. Having heard the learned counsel for the appellant

and also on perusal of the records, the claimant, in support of

his contention, examined himself as P.W.1 and also relied upon

the documents at Exs.P1 to P8 i.e., copies of FIR, complaint,

sketch, mahazar, wound certificate, IMV Report, charge sheet

and police intimation letter. The respondents also relied upon

the documents at Exs.R1 to R6 i.e., authorization letter, true

copy of insurance policy, accident register extract, police

intimation letter, the letter and the postal acknowledgment. The

respondents also examined R.W.1-the official of the Insurance

Company. No doubt, in the cross-examination of P.W.1, a

suggestion was made that this vehicle was not involved in the

accident but it is has been falsely implicated and the said

suggestion has been categorically denied. The doctor who has

been examined as P.W.2 was thoroughly cross-examined by the

Insurance Company. No doubt, it is elicited from the mouth of

P.W.2 that the vehicle number has not been mentioned. In

order to prove the implication of the vehicle as contended by the

Insurance Company, the Insurance Company relied upon the

only evidence of R.W.1. R.W.1 in his cross-examination

categorically admits that they have not conducted any

investigation after they have received the summons from the

Tribunal and he also admits that there was a delay of 5 days in

lodging the complaint. Hence, he has deposed before the Court

that the vehicle has been implicated. Except taking the defence

in the cross-examination of P.W.1 and P.W.2, nothing has been

elicited from the mouth of P.W.1 and P.W.2 with regard to the

implication of the vehicle. No doubt, there is a delay of 5 days in

lodging the complaint. The police have investigated the matter

and filed the charge sheet. The Investigating Officer has not

been examined before the Tribunal.

10. It is also important to note that in the statement of

objections, no defence has been taken with regard to the false

implication of the vehicle and the only contention taken is that

the claimant has to prove the accident. No doubt, both the

documents at Ex.R3-the accident register extract and Ex.R4-

police intimation extract does not disclose the vehicle number.

Merely because the vehicle number is not mentioned in the

accident register extract, it would not suffice to come to the

conclusion that the vehicle has been falsely implicated. The

Hospital Authorities only have to inform the police about the

accident. No doubt, there is a delay of 5 days in lodging the

complaint. It is the relative of the injured who has to

immediately take the injured to the hospital for treatment and

the first and foremost duty of the relatives is to provide the

treatment to the injured and not to rush to the police station to

lodge a complaint as contended by the Insurance Company.

When once the Insurance Company has taken a defence of false

implication of the vehicle in the case, the material evidence

either oral or documentary has to be produced before the Court

to substantiate the same. The documents at Exs.R3 and R4 do

not come to the aid of the Insurance Company to arrive at a

conclusion that the vehicle has been falsely implicated in the

case. Hence, I do not find any force in the contention of the

learned counsel for the appellant that the Tribunal has

erroneously fastened the liability on the Insurance Company by

coming to the conclusion that the vehicle was involved in the

accident. Hence, I answer point No.1 in the negative.

Point Nos.2 and 3:-

11. The injured relied upon the wound certificate which

is marked at Ex.P5, wherein the injury is mentioned as right tibia

distal 1/3rd isolated and opined that the injury is simple in

nature. The injured was taken to hospital immediately after the

accident. No doubt, in the wound certificate, the nature of the

injury is mentioned as simple in nature. The claimant has also

relied upon Ex.P8-the letter, wherein the Sparsh Hospital informs

the Sub Inspector of Police that in the wound certificate by over

sight the injury is mentioned as simple, but the actual injuries

are grievous in nature. On perusal of Ex.P9-the discharge

summary, it is clear that X-ray right leg AP and lateral showed

communited middle third fracture of right tibia. He was an

inpatient from 22.10.2011 to 26.10.2011 and he was subjected

to surgery. Thus, he was an inpatient for a period of 5 days.

The doctor has also been examined before the Tribunal and he

assessed the disability at 10%. The Tribunal, after considering

the evidence of P.W.1, particularly, the documents i.e., wound

certificate and discharge summary and also the evidence of the

doctor, awarded an amount of Rs.20,000/- on the head of 'pain

and sufferings' and taking attendant charges at Rs.125/- per

day, an amount of Rs.625/- is awarded.

12. The Tribunal has taken the notional income of the

claimant at Rs.4,500/- per month and the disability at 10% and

assessed the compensation on the head of 'loss of income during

the laid up period'. The Tribunal also awarded an amount of

Rs.1,000/- for food, diet and nutrition and an amount of

Rs.500/- is awarded towards 'conveyance and incidental

charges'.

13. Having perused the material on record, particularly,

the medical bills to the tune of Rs.35,500/- and also the

assessment of compensation made towards the discomfort and

future medical expenses, no exorbitant compensation has been

awarded by the Tribunal as contended by the appellant. The

Tribunal has rightly assessed the disability at 1/3rd by taking

note of the nature of the injuries sustained by the claimant.

Hence, I do not find any force in the contention of the learned

counsel for the appellant that the Tribunal has committed an

error in awarding the exorbitant compensation. Accordingly, I

answer point No.2 in the negative.

14. In view of the discussion made above, I pass the

following:-

ORDER

The appeal is hereby dismissed. The amount

in deposit, if any, is ordered to be transmitted to the

Tribunal, forthwith.

Sd/-

JUDGE

PYR