M/S Oriental Insurance Company ... vs Shafee Ahmed
2021 Latest Caselaw 2429 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF JUNE, 2021

                          PRESENT

           THE HON'BLE MRS. JUSTICE S. SUJATHA

                               AND

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

 MISCELLANEOUS FIRST APPEAL NO.7267 OF 2015 (MV)
                      C/w
   MISCELLANEOUS FIRST APPEAL NO.7733 OF 2015

In MFA No.7267/2015

BETWEEN

M/s. Oriental Insurance Company Limited
Divisional Office-VII
No.1, Shankar House
3rd Floor, R M V Extension
Mekhri Circle
Bengaluru-560 080.
Now repd. by its Regional Office
Residency Road
Bengaluru-560 025.
Rep. by its Deputy Manager
                                                 ...Appellant
(By Shri B.C. Shivannegwoda, Advocate
 for A M Venkatesh, Advocate)

AND

      1. Shafee Ahmed
         S/o late D Usman,
         Aged about 45 years
         R/at Brigade Nest
                                   2




         I Floor, Marcom Road
         Ashoknagar
         Bengaluru-560 025.

      2. Sarfaraz Zakir
         No.104, I Floor
         9th Cross, First Block
         R T Nagar
         Bengaluru-560 032.
                                              ....Respondents
(By Shri T I Abdulla, Advocate for R1;
R2 served)

      This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, against the judgment and award
dated 23.06.2015 passed in MVC No.585 of 2012 on the file of
the V Additional Small Causes Judge and Member, MACT, Court
of Small Causes, Mayohall Unit, Bengaluru, awarding a
compensation of Rs.5,73,600/- with interest @ 6% per annum
from the date of petition till the date of its realisation.

In MFA No.7733/2015

BETWEEN

Sri. Shafee Ahmed
S/o late D Usman
Aged about 46 years
R/at Brigade Nest
I Floor, Marcom Road
Ashoknagar
Bengaluru-560 025.
                                                 ...Appellant
(By Shri T I Abdulla, Advocate)

AND

      1. Sri Sarfaraz Zakir
         S/o Ibrahim
         Aged about 26 years
                                3




        R/at NO.104, I floor
        9th Cross, First Block
        R T Nagar, Bangalore-560 032.

     2. The Divisional Manager
        Divisional Office-VII
        Oriental Insurance Company
        No.1, Shankar House
        3rd Floor, R M V Extension
        Mekhri Circle
        Bengaluru-560 080.
                                                  ....Respondents
(By Shri B.C. Shivannegwoda, Advocate
 for A M Venkatesh, Advocate for R2;
 Notice to R1 is dispensed with)

      This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, against the judgment and award
dated 23.06.2015 passed in MVC No.585 of 2012 on the file of
the V Additional Small Causes Judge and Member, MACT, Court
of Small Causes, Mayohall Unit, Bengaluru, partly allowing the
claim petition for compensation and seeking enhancement of
compensation.

      In these Miscellaneous First Appeals arguments being
heard, judgment reserved, coming on for pronouncement of
orders, this day, INDIRESH J., delivered the following:

                        JUDGMENT

These two appeals arise out of the judgment and award

dated 23rd June, 2015 passed in MVC No.585 of 2012 by the V

Additional Small Causes Judge and Member, Motor Accident

Claims Tribunal, Bangalore (for short, hereinafter referred to as

'the Tribunal'). MFA No.7267 of 2015 is filed by the Insurance

Company challenging the judgment and award on the ground of

liability and quantum; and MFA No.7733 of 2015 is filed by the

claimant seeking enhancement of compensation.

2. For the sake of convenience, the parties in this appeal

are referred to with their status and rank before the Tribunal.

3. It is the case of the claimant before the Tribunal that

on 24th August, 2010 at about 2.00 p.m, the claimant was

walking along with his wife on left side of Brigade Road and

when he reached the old Police Station, a scooter bearing No.KA-

04/HB-1551 dashed to the claimant from behind and due to the

said impact, the claimant sustained grievous injuries and he was

shifted to Hosmat Hospital, Bangalore for treatment. Thereafter,

he had taken treatment in several hospitals as stated in the

claim petition. It is further averred in the claim petition the

claimant was a coffee planter at M/s. Devanari-Kanteli Estate,

M/s. Ghousia Estate and M/s. Bhuvanahalli Estate and was

earning Rs.30,000/- per month and due to aforementioned

accident, claimant suffered permanent disability. Hence, he filed

MVC No.585 of 2012 on the file of the Tribunal, seeking

compensation.

4. After service of notice, respondent No.1 served and

placed ex-parte. Respondent No.2-Insurance Company filed

detailed written statement denying the averments made in the

claim petition. The Insurance Company denying the involvement

of the vehicle in question, sought for absolving liability from

payment of compensation and therefore, sought for dismissal of

the claim petition. The Tribunal, after considering the pleadings

on record, formulated issues for its consideration. The claimant

was examined as PW1 and has examined three witnesses as

PW2 to PW4 and produced 23 documents and same were

marked as Exhibits P1 to P23. Respondent-Insurance Company

got examined its official as RW1 and produced two documents

marked as Exhibits R1 and R2. The Tribunal, after considering

the material on record, by its judgment and award dated 23rd

June, 2015 allowed the claim petition in part and held that the

claimant is entitled for compensation of Rs.5,73,600/- with

interest at 6% per annum excluding interest on future medical

expenses, from the date of petition till date of its realisation.

Being aggrieved by the judgment and award passed by the

Tribunal, both on liability and quantum, the Insurance Company

has preferred MFA No.7267 of 2015. The claimant has filed MFA

No.7733 of 2015 seeking enhancement in compensation.

5. We have heard Sri B.C. Shivannegowda learned counsel

appearing for Sri A.M. Venkatesh for the Insurance Company

and Sri T.I. Abdullah, learned counsel appearing for the

claimant.

6. Learned counsel appearing for the Insurance Company

argued that the case of the claimant before the Tribunal is

surrounded with surmises and conjunctures. He submitted that

as per Exhibit P10-Inpatient record of Hosmat Hospital, injury

sustained by the claimant was on account of fall from two-

wheeler in the morning. No complaint was lodged for a period of

twelve days and no satisfactory explanation offered in the claim

petition with regard to delay in lodging the complaint to the

police authorities. He further contended that the police records

indicate that the accident occurred on 24th September, 2010

involving the Honda Activa scooter. There is lot of discrepancy

in First Information Report, Charge sheet and the medical

records and therefore, the Tribunal has not properly appreciated

the documents on record. He also submitted that the award of

compensation is without any basis and therefore, placing

reliance on the judgment of the Hon'ble Supreme Court in the

case of NORTHWEST KARNATAKA ROAD TRANSPORT

CORPORATION v. GOURABAI AND OTHERS reported in (2009)15

SCC 165, argued that the impugned judgment and award passed

by the Tribunal requires to be set aside.

7. Per contra, Shri T.I. Abdullah, learned counsel

appearing for the claimant vehemently contended that the

finding recorded by the Tribunal is based on the documents on

record and he further contended that there is no dispute with

regard to occurrence of the accident and the involvement of the

vehicle in question and therefore, contended that the impugned

judgment and award requires to be affirmed on liability with

enhancement of just compensation.

8. In the light of the submission made by the learned

counsel appearing for the parties, we have carefully considered

the finding recorded by the Tribunal on issue No.1 and perused

the records. As per the claim statement, the claimant sustained

injuries on account of the road traffic accident on 24th August,

2010 at about 2.00 p.m. on Brigade Road near old Police

Station. The First Information Report was lodged on 05th

September, 2010, pursuant to the complaint lodged by claimant

for the offences punishable under Section 279 and 337 of Indian

Penal Code in Crime No.77 of 2010. Exhibit P3-wound certificate

substantiate that the road traffic accident occurred on 24th

August, 2020 at 2.45 p.m. as the claimant having been hit by a

scooter. In view of the submission made by the learned counsel

appearing for the Insurance Company, we have carefully

examined Exhibit P10(A), Doctor's Order, which is reproduced as

under:

"History of fall from two wheeler today morning. History of transient blackout for 10 minutes. No history of vomiting/ ENT bleed. No previous medical problems. No. previous surgeries. O/E moderately/nourished.

Pulse -80/m, B.P. 130/80...."

9. Perusal of Exhibit P10(A) indicate that the injury

sustained by the claimant is on account of fall from a two-

wheeler in the morning which is contrary to the statement made

in the complaint Exhibit P7. No discharge summary was

produced before the Tribunal. Careful examination of the

complaint would indicate that the claimant has not offered

satisfactory explanation with regard to delay in lodging

complaint with the Police Authorities. It is was also elucidated

during the cross-examination of PW1 that the claimant was an

Advocate by occupation he has not whispered in the claim

petition anything about the said profession, however has stated

that he is a coffee planter. Since there is no satisfactory

explanation offered by the claimant in the complaint with regard

to delay of 12 days in lodging the complaint, we are of the

considered view that the Tribunal has not properly appreciated

the facts on record as required under law and therefore, the

arguments advanced by the learned counsel appearing for the

Insurance Company be accepted. Suffice it to say that, perusal

of Exhibit P19(A)-Medical record, would indicate that the

claimant sustained injuries on account of fall from scooter in the

morning, however, in the complaint-Exhibit P7, the claimant has

stated that he sustained injury on account of road traffic

accident at 2.00 p.m. and in view of these variance in the

evidence of the claimant himself, it would disentitle him from

claiming compensation under Section 166 of the Motor Vehicles

Act. We have also noticed that Hon'ble Supreme Court in the

case of GOURA BAI (supra) has held as follows:

"2. The main contention of the appellant before the MACT as well as before the High Court was that the deceased did not sustain any injury in any accident involving the bus of the corporation. Reference was made to the evidence of the doctor, who had admitted the deceased to the hospital, that the deceased had suffered head injury due to fall from the height of 8 to 10 feet of his own house. Though this was specifically stated in the written statement, MACT and the High court brushed aside the same stating that there was indirect admission about the deceased having sustained injury in vehicular accident.

3. The effect of the evidence of the doctor and Exhibit R-1 does not appear to have been looked into by MACT and the High Court. MACT did not place reliance on the document Exhibit R-1 on the ground that the brother of the injured stated that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks from the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct.

4. Exhibit R-1 establishes beyond the shadow of doubt that the injuries sustained were not on account of any vehicular accident. That being so, MACT and the High Court were not justified in making any award."

10. It is settled principle of law that in the motor accident

cases, medical records speak about not only the injury but also

the occurrence of the incident. In the instant case, there are

two versions, wherein the medical records substantiate that the

claimant sustained injuries on account of fall from two-wheeler

in the morning on 24th August, 2010, and on the other hand, the

claimant, claiming to be an Advocate by profession and a coffee

planter by occupation, lodged complaint to the Police Authorities

as per Exhibit P7, stating that he met with an accident at around

2.00 p.m. on 24th August, 2010, as having been hit by a scooter.

In view of the law declared by the Hon'ble Supreme Court

referred to above, the finding recorded by the Tribunal, fastening

liability on the respondents is without any basis and contrary to

the records. Notably, the claimant is neither an illiterate person

nor a rustic villager and being a member of legal fraternity,

ought to be a prudent person while disclosing the cause of

accident and in that view of the matter, we are of the considered

view that the Tribunal has not properly appreciated the medical

records in the right perspective and has arrived at a conclusion

with no evidence and therefore, the impugned judgment and

award is liable to be set aside. In the result, we pass the

following:

ORDER

i) Miscellaneous First Appeal No.7267 of 2015

preferred by the Insurance Company is allowed;

ii) Miscellaneous First Appeal No.7733 of 2015

preferred by the claimant is dismissed;

iii) Judgment and award dated 23rd June, 2015

passed in MVC No.585 of 2012 on the file of the V

Additional Small Causes Judge and Member,

MACT, Court of Small Causes, Mayohall Unit,

Bengaluru is set aside. Claim petition is

dismissed.

iv) Amount in deposit be refunded to the Insurance

Company.

Sd/-

JUDGE

Sd/-

JUDGE

lnn