Karnataka High Court
Sri Ravi @ Ravindra vs Thammanna on 25 March, 2021
Author: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 25TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.6863/2014
C/W. M.F.A.No.1541/2015 (MV -I)
In M.F.A.No.6863/2014
BETWEEN:
SRI. RAVI @ RAVINDRA,
S/O YAMAIAH, AGED ABOUT 21 YEARS,
R/O YALLADAHALLI VILLAGE,
MADDUR-TQ,
MANDYA DISTRICT. ... APPELLANT
(BY SRI. RAJA.L, ADV.)
AND:
1. THAMMANNA,
S/O LATE BORAIAH, MAJOR,
R/O UMMADAHALLI VILLAGE,
MANDYA - 571 401.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
No.1119/B, M.C.ROAD,
MANDYA - 571 401.
... RESPONDENTS
(VIDE ORDER DATED:21.01.2015,
NOTICE TO R-1 IS DISPENSED WITH;
SRI. O.MAHESH, ADVOCATE FOR R-2)
2
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLE ACT, PRAYING TO MODIFY JUDGMENT AND
AWARD PASSED BY THE LEARNED SENIOR CIVIL JUDGE &
MACT, MADDUR IN MVC No.1282/2012 DATED 16.7.2014,
FURTHER BE PLEASED TO ENHANCE THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION BY ALLOWING THIS
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY
In M.F.A.No.1541/2015
BETWEEN:
THE BRANCH MANAGER,
UNITED INDIA INSURANCE
COMPANY LIMITED, No.1119/B,
M.C.ROAD, MANDYA CITY - 571 401.
BY REGIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD,
HUDSON CIRCLE, BANGALORE - 560 001.
BY ITS MANAGER. ... APPELLANT
(BY SRI. O.MAHESH, ADV.)
AND:
1. SRI. RAVI @ RAVINDRA,
AGED ABOUT 21 YEARS,
S/O SRI. YAMAIAH,
R/AT YALADAHALLI VILLAGE,
MADDUR TALUK, MANDYA DISTRICT - 571 401.
2. THAMMANNA,
S/O LATE BORAIAH, MAJOR,
R/O UMMADAHALLI VILLAGE,
MANDYA - 571 401.
... RESPONDENTS
(BY SRI. L.RAJA, ADV., FOR R-1;
R-2 IS SERVED AND UNREPRESENTED)
3
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:16.7.2014
PASSED IN MVC NO.1282/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE & MACT, MADDUR, AWARDING COMPENSATION
OF Rs.2,26,680/- WITH INTEREST @ 6% P.A. ON
RS.2,18,680/- FROM THE DATE OF PETITION TILL
REALIZATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA.6863/2014 is by the claimant seeking for
enhancement, while MFA.1541/2014 is by the Insurance
Company challenging the award of the Tribunal on the ground
that there was no motor vehicle accident at all.
2. On 29.08.2012, a claim petition was filed under Section
166 of the Motor Vehicles Act, 1988 (hereinafter referred to
as 'the Act', for short) by the claimant - Mr.Ravi @ Ravindra.
In the claim petition, he basically stated that while he was
returning to his village after finishing his work on 24.05.2012,
a motorcycle bearing registration No.KA03-EJ-5126 hit him
from behind and as a result, he suffered grievous injuries.
3. In other words, it was his case that he was a pedestrian
and while he was walking by the road, he was struck by the
motorcycle. He contended that he had suffered a permanent
disability and claimed a total sum of `9,75,000/- as
compensation.
4. The 1st respondent i.e., the owner of the motorcycle
entered appearance and contested the matter by denying all
the claim averments. He further stated that his motorcycle
was insured with the 2nd respondent and the policy was valid
as on the date of the accident. He stated that if any
compensation were to be awarded by the Tribunal, the same
will have to be satisfied by the Insurance Company.
5. The 2nd respondent - Insurance Company also entered
appearance and filed objections. The Insurance Company
initially denied all the claim averments. Subsequently, by way
of an amendment, the Insurance Company put forth the plea
that in an investigation conducted by it, it had been found
that there was no accident and a false story had been
concocted for the purpose of the claim. They stated that the
claimant had fallen from a tree and his grievous injuries were
relatable to the said fall and not to any motorcycle accident.
They also stated that the police authorities had also
investigated the matter and submitted a 'B' report and
therefore, it was clear that the injuries were not as a result of
a motorcycle accident, but due to a fall from a tree.
6. In support of the claim petition, the claimant examined
himself as P.W.1 and also one Byresha Y.S., an eye witness
to the accident as P.W.2 and one Dr.N.T.Ramesh as P.W.3.
He produced, in all, 15 documents.
7. The respondent - Insurance Company examined one of
its officials Sri C.A.Chandrashekar as R.W.1 and through him
produced 7 documents.
8. The Tribunal, on consideration of the evidence, came to
the conclusion that an accident, as stated by the claimant,
had occurred and the claimant was entitled to a total sum of
`2,26,680/-. The Tribunal, as regards the occurrence of the
accident, stated as follows:
"25. On perusal of Ex.R.5, the concerned police
have submitted 'B' final report stating that no such
accident was taken place and the petitioner had not
sustained any injuries alleged to have been sustained in
RTA. On careful perusal of Ex.P.12 case sheet wherein
the history of injuries is mentioned as due to RTA. On
perusal of Ex.P.4 wound certificate issued from PHC,
K.M.Doddi, which reveals that the history of injuries is
mentioned as road traffic accident on 24.05.2012. It is
significant to note that the respondent No.2 Insurance
Company has not chosen to examine the concerned
I.O. who submitted 'B' final report to disprove the fact
that the accident was not due to RTA. Therefore, the
respondent No.2 Insurance Company has failed to
prove that the injuries sustained by the petitioner are
not the accidental injuries and the motorcycle bearing
Reg.No.KA-03-EJ-5126 was not involved in the accident
by adducing cogent and convincing evidence before the
Court. All the medical records produced before the
Court clearly go to show that the petitioner had
sustained injuries in RTA. It is to be noticed that merely
because the concerned police have submitted 'B' final
report it cannot be said that the claimant/injured
person is not entitled for claiming compensation.
Considering the cross-examination of RW.1, materials
placed on record and also for the foregoing reason, I
am of the view that the respondents No.1 and 2 being
the owner and insurer of the offending vehicle are
jointly and severally liable to pay the said compensation
to the petitioner with interest at 6% per annum form
the date of petition till realization. Accordingly, issue
No.2 is answered partly in the affirmative"
9. Learned counsel for the claimant contended that the
factum of the accident cannot be doubted since the entries in
the medical records which had been made immediately after
the accident consistently recorded that the claimant had
stated that he suffered injuries as a result of the road traffic
accident. He submitted that the accident occurred at about
11.00 a.m. and the first entry regarding the injuries and the
history of the road accident was made at 11.55 a.m. in the
Community Health Centre, K.M.Doddi, as per Ex.P.4. He
submitted that the claimant had also produced the entire case
sheets of his hospitalization at the Government Hospital,
Mandya and these case sheets indicated that he was taken to
the Hospital at 11.55 a.m. on the date of the accident itself
and even in those records, there was a clear reference to the
road traffic accident made by the claimant. He, therefore,
submitted that the contention of the Insurance Company that
there was no motor vehicle accident, and that it was a case of
an injury caused by falling from a tree cannot be accepted.
10. As regards compensation, he submitted that the
Tribunal had erred in considering his income as `4,000/-
when even according to the chart prepared by the Karnataka
State Legal Services Authority, the notional income in respect
of a motor vehicle accident victim was `7,000/- for the year
2012. He submitted that the sums awarded towards pain and
sufferings and loss of amenities were also on the lower side.
11. Sri O. Mahesh, learned Senior Counsel appearing for
the Insurance Company contended that the police had
investigated the complaint of the claimant that a motor
vehicle accident had occurred and after a thorough
investigation, they had come to the conclusion that the
claimant had actually fallen from a tree and had not met with
any motor vehicle accident. He submitted that since the
police had filed a 'B' report and the same was accepted by the
Court, it was not open for the Tribunal to record a finding that
the claimant suffered injuries due to a motor vehicle accident.
He submitted that the statements recorded by the police
clearly indicate that the claimant and the other witnesses had
admitted that the injuries had occurred due to a fall from the
tree and that a complaint had been lodged only at the
instigation of the villagers and the lawyers for the purpose of
securing compensation. He submitted that in the light of the
clear statement recorded by the police, the Tribunal could not
have come to the conclusion that the accident had occurred.
Learned counsel has relied upon certain contradictions in the
statements in order to substantiate his contention.
12. In reply, learned counsel for the claimant contended
that as a matter of fact, acceptance of 'B' report was
challenged by the claimant and the I Additional Civil Judge
and JMFC., Maddur, by an order dated 28.09.2017 rejected
the 'B' report and directed the registration of a criminal case
and ordered summons to the accused. He submitted that in
view of this order, reliance placed upon by the Insurance
Company regarding 'B' report cannot be accepted.
13. I have considered the submissions of the learned
counsel and also perused the Trial Court records.
14. The records produced by the claimant indicate that he
complained of injuries as a result of a road traffic accident on
24.05.2012 at 11.00 a.m. The wound certificate which has
been produced as Ex.P4 records that injuries had been found
on the claimant and the said injuries had been caused on
24.05.2012 at 11.00 a.m. due to a road traffic accident. The
said wound certificate also records that the claimant was first
seen by the Medical Officer on 24.05.2012 at 11.55 a.m. at
the Community Health Centre, K.M.Doddi and on
examination, he found several injuries on the claimant. It is
thus clear that at about 11.55 a.m. on 24.05.2012 itself the
claimant did inform the Medical Officer that he had suffered a
road traffic accident which had caused him grievous injuries.
15. Subsequently, i.e., at about 1 p.m. on the same day,
the claimant was examined by the Doctors at the Government
Hospital, Mandya and even in this medical record, there is a
clear reference that he was referred from Primary Health
Centre, K.M.Doddi, with a history of an alleged road traffic
accident. Thus, within a period of three hours from the
accident, there are multiple entries regarding claimant having
suffered a road traffic accident.
16. Learned counsel for the Insurance Company, however,
contended that these entries can be of no significance since
they did not contain the registration number of the
motorcycle which had caused the accident. It was his
contention that as the details of the offending vehicle were
not forthcoming in the medical records, no cognizance of the
statements can be taken by the Tribunal. He submitted that
the statements recorded by the police pursuant to the
investigation were the only credible evidence which were
relevant for the purpose of ascertaining whether an accident
occurred or not.
17. He submitted that the accident had occurred on
24.05.2012 and the FIR was lodged only on 29.05.2012 i.e.,
after a period of five days. He submitted that the delay in
lodging the FIR was by itself proof that a story was being
concocted for the purposes of laying a claim under the motor
vehicle accident.
18. In order to appreciate the contentions of the learned
counsel, it would be necessary to examine the scheme of the
Motor Vehicles Act in relation to the manner in which the
occurrence of a motor vehicle accident is to be established.
19. Section 134 of the Act casts a duty on the driver, in the
event of an accident and injury to a person, firstly, to take all
reasonable steps to secure medical attention to the injured
and secondly, thereafter, to report the circumstances of the
occurrence to the nearest police station as soon as possible,
at any rate, within twenty-four hours of the occurrence.
20. The driver is also required to give in writing to the
insurer information about the occurrence of the accident and
also the particulars of insurance obtained in respect of the
vehicle.
21. Thus, in law, a duty is cast only on the driver of the
motor vehicle or the person in-charge of the vehicle to inform
the police about the occurrence of the accident. There is no
obligation imposed on the victim to inform the police.
Consequently, the information, if any, provided to the police
cannot be attributed as a statement of the victim in all cases.
22. Section 158(4) of the Act mandates the owner of the
motor vehicle is to give such information as may be required
to a police officer for the purpose of determining whether the
vehicle was or was not being driven in contravention of
Section 146 of the Act.
23. Section 158(6) of the Act mandates that as soon as any
information regarding any accident involving death or bodily
injury to any person is recorded or reported to a police
officer, the police officer is required to forward a copy of the
same within thirty days from the date of recording
information to the Claims Tribunal having jurisdiction and
send a copy thereof to the concerned insurer.
24. It is, therefore, clear that the scheme of the Act
contemplates that primarily it is the duty of the driver of the
motor vehicle to inform the police about the accident and for
the police to thereafter inform the Claims Tribunal about the
occurrence of the accident.
25. Rule 150 of the Central Motor Vehicles Rules
(hereinafter referred to as 'the CMV Rules', for short) imposes
an obligation on the police to submit a report in Form 54.
The police officer is required to furnish the required
information to the person eligible to claim compensation
under Section 160 of the Act within seven days from the date
of receipt of request and on payment of a fee of rupees ten.
26. The prescribed Form 54 contains information which is
relevant to the occurrence of the accident, such as date, time
and place of the accident, details of the injured or deceased,
details of the hospital to which the victim was transported,
the registration number of the vehicle, driving licence
particulars and the name and address of the owner and the
insurer.
27. A reading of Form 54 would indicate that these details
are required to be furnished to the victim of the accident so
as to entitle him to make a claim for compensation against
the concerned persons i.e., owner, driver and the insurer.
28. This would further lead to the conclusion that the
claimant, in law, is not obliged to take any steps to
investigate the manner in which the accident has occurred
and all that he is required to do is to approach the police
officer, secure the Form 54 and file a claim petition on that
basis.
29. Having regard to the scheme of the Act, the arguments
advanced by Sri. O. Mahesh, learned counsel for the Insurer,
that the First Information Report, statements recorded by the
police, the charge sheet filed by the police would be vital
pieces of evidence to prove or disprove the accident, do not
really hold water.
30. The First Information Report, the statements recorded
by the police during investigation or a charge sheet laid by
the Police are all essentially documents which are necessary
to be maintained by the police authorities while investigating
a crime and for prosecuting the offender under the Code of
Criminal Procedure. These documents are required to be
proved even before the Criminal Courts. Therefore, the mere
production of a First Information Report or the statements
recorded by the police or a charge sheet cannot be construed
as proof of their contents.
31. To put it differently, if the owner or the insurer were to
rest their defence on the basis of materials collected by the
prosecution, they would have to prove the said documents in
the same manner as is provided under the Indian Evidence
Act and the documents of the prosecution cannot ipso facto
become proof of contents therein in a proceeding under the
Motor Vehicles Act.
32. The legal position regarding the evidentiary value of a
First Information Report was stated and reiterated by the
Apex Court in the case of Baldev Singh & Another Vs.
State of Punjab - AIR 1996 SC 372. In paragraph 10 of
the said judgment, it has been observed as under:
"State briefly, FIR is not a substantive piece of
evidence, it is only relevant in judging the
veracity of prosecution case and the value to be
attached to it depends on the facts of each case.
Only the essential or broad picture need be stated
in the FIR and all minute details need not be
mentioned therein. It is not a verbatim summary
of the prosecution case. It need not contain
details of the occurrence as if it were an
"encyclopaedia" of the occurrence. It may not be
even necessary to catalogue the overact acts
therein. Non mentioning of some facts or vague
reference to some others are not fatal."
33. This has also been further reiterated by the Apex Court
in the case of C.Magesh Vs. State of Karnataka - (2010)
5 SCC 645. In paragraph 26 of the said judgment, it has
been observed as under:
"It is settled law on the point that FIR is
not a substantive piece of evidence. However
the FIR cannot be given a complete go-by since
it can be used to corroborate the evidence of the
person lodging the same. In the judgment of
this Court titled Baldev Singh vs. State of Punjab
reported in (1990) 4 SCC 692, it was held that
as far as the evidentiary value of the FIR is
concerned it can only be used to for
corroboration of its maker, but the FIR can not
be used as substantial evidence or
Crl.A.Nos.1028-1029 of 2008 ....(contd.)
corroborating a statement of third party."
34. In fact, in a recent judgment of the Apex Court in the
case of Anita Sharma and Others Vs. The New India
Assurance Company Limited - (Civil Appeal Nos.4010-
4011/2020 dated 08.12.2020), in paragraph 22, it has
been held as follows:
"Equally, we are concerned over the failure of
the High Court to be cognizant of the fact that
strict principles of evidence and standards of
proof like in a criminal trial are inapplicable in
MACT claim cases. The standard of proof in
such like matters is one of preponderance of
probabilities, rather than beyond reasonable
doubt. One needs to be mindful that the
approach and role of Courts while examining
evidence in accident claim cases ought not to be
to find fault with non-examination of some best
eye-witnesses, as may happen in a criminal
trial; but, instead should be only to analyze the
material placed on record by the parties to
ascertain whether the claimant's version is more
likely than not true. A somewhat similar
situation arose in Dulcina Fernandes v.
Joaquim Xavier Cruz wherein this Court
reiterated that:
"7. It would hardly need a mention that the
plea of negligence on the part of the first
respondent who was driving the pick-up van as
set up by the claimants was required to be
decided by the learned Tribunal on the
touchstone of preponderance of
probabilities and certainly not on the
basis of proof beyond reasonable doubt.
(Bimla Devi v. Himachal RTC [(2009) 13 SCC
530: (2009) 5 SCC (Civ) 189:(2010) 1 SCC
(Cri) 1101])."
35. In this view of the matter, it is clear that the records
maintained by the Police during the course of their
investigation cannot really be considered as substantive
evidence and cannot be taken as proof the facts stated
therein. The reliance, therefore, placed upon by insurers on
the documents which are essentially records of the
prosecution cannot be a determinative factor or actual proof
of the occurrence of the accident.
36. In this regard the Karnataka Motor Vehicles Rules
(hereinafter referred to as 'the KMV Rules', for short) is also
required to be noticed.
37. Rule 232-C (3) of the KMV Rules states that every
application for compensation is to be accompanied by a
Medical Certificate in Form KMV 64 or the Post-mortem
Report or Death Certificate and First Information Report in
respect of the accident.
38. The requirement of producing a Medical Certificate or
the Post-mortem Report or a Death Certificate is obviously to
establish the injuries or the death. The production of First
Information Report is only for the purpose of notifying the
Claims Tribunal about the occurrence of the accident and to
evidence that it is recorded in the police station.
39. There is no provision either under the Motor Vehicles
Act or under the Karnataka Motor Vehicles Rules which
indicate that the police records are to be considered as formal
proof of occurrence of the accident.
40. It is to be noticed here that in the year 2013, the
Karnataka Motor Vehicles Rules was amended. Though these
Rules may not apply in the instant case as the accident
occurred on 24.05.2012, nevertheless, the amended Rules do
shed light on the statutory scheme in relation to a proceeding
relating to claim of compensation for a victim of a motor
vehicle accident.
41. Rules 232, 232-A, 232-B, 232-C, 232-D, 232-E and
232-F of KMV Rules read as under:
"232. Duties of Insurance Company.- It shall
be the duty of the Divisional Manager or the Branch
Manager of the Insurance Company, as expeditiously as
possible, to.-
(a) move an application in Form 63 before
the Investigating Police Officer with
prescribed fees, if any and gather full
information about the accident, at the
earliest, after receiving information about it,
or on receipt of notice from the Claims
Tribunals under Rule 235;
(b) ascertain and verify facts about
insurance of motor vehicle(s) involved in the
accident and confirm the same to the Claims
Tribunal within thirty days of receiving notice
of the claim case;
(c) move application before the concerned
registering authority in Form 63-A and
gather information about the motor
Vehicle(s) involved, and the driving
licence(s) held by the driver(s) thereof as
per details mentioned in Form 63-B;
(d) deposit with the written statement in
the Claims tribunal, the amount equivalent
to the compensation, awardable on the
principle of no fault liability under Section
140 of the Act in such cases where the
information received in Form 63 confirms
death or permanent disability to have been
caused as a result of the use of the motor
vehicle covered by the insurance
certificate/policy issued by it.
232-A. Presumption about reports.- The
Contents of reports submitted to the Claims Tribunal in
Form 54 appended to the Central Motor Vehicles Rules,
1989, Form 63-B and confirmation under clause (b) of
Rule 232 by the Insurance company shall be presumed
to be correct, and shall be read in evidence without
formal proof, till proved to the contrary.
232-B. Supply of information.- (1) Any person
having an interest in any claims petition initiated/to be
initiated before any Claims Tribunal may make
applications in Form 63 or Form 63-A before the
Investigating Police Officer or the Registering Authority
as the case may be for supply of information.
(2) On receipt of applications under sub-rule (1),
the Investigating Police Officer or the Registering
Authority, as the case may be, shall provide to the
applicant, within 10 days of receipt of the application,
the information in Form 54 appended to central Motor
Vehicles Rules,1989 or in Form 63-B, as the case may
be.
232-C. Applications.- (1) Every application for
compensation arising out of accident of the nature
specified in sub-section(1) of Section 165, shall be made
in Form 63-C by a person specified in sub-section(1) of
Section 166, to the Claims Tribunal having jurisdiction
over the area in which the accident occurred.
(2) Every such application shall be presented in
duplicate to the Claims Tribunal either in person or
through an authorized agent or an Advocate and shall be
signed by the applicant.
(3) There shall be appended to every such
application the following documents.-
(a) proof of identity and proof of address of the
applicant(s) unless exempted from doing so
for reasons to be recorded in writing by
Tribunal;
(b) passport size photograph(s) of the
applicant(s) duly attested by the Advocate
on record;
(c) Medical Certificate in Form KMV 64 or Post-
mortem Report or Death Certificate as the
case may be;
(d) Copy of the First Information Report in
respect of the accident.
(e) An affidavit of the applicant to the effect
that the statement of facts contained in the
application is true to the best of his/her
knowledge/belief, as the case may be, and
further if the applicant(s) has/have earlier
preferred any claim petition with regard to
the same cause of action, and if so, what
was the result thereof;
(f) All the documents and affidavits for the
proof thereof, and affidavits in support of all
facts on which the applicant relies in context
of his claim, entered in a properly prepared
list of documents and affidavits.
Provided that the Claims Tribunal may not allow
the applicant to rely in support of his claim, on any
document or affidavit not filed with the application,
unless it is satisfied that for good or sufficient cause, he
was prevented from filing such document or affidavit
earlier;
(g) reports obtained in Form 54 appended to
the Central Motor Vehicles Rules, 1989 and
in Form 63-B and if no such report(s) have
been obtained reasons therefore;
(h) medical certificate of injuries, or the effect
thereof, other than those included in Form
54 appended to the central Motor Vehicles
Rules, 1989.
(4) The Claims Tribunal may also require the
applicant to furnish the following information to satisfy
itself that spurious or a collusive claim has not been
preferred.-
(a) full particulars of all earlier accidents in
which the applicant or the person deceased,
as the case may be, has been involved;
(b) the amount of compensation paid in such
earlier accidents, name and particulars of
the victim, and of the person who paid the
damages; and
(c) relation of persons mentioned in clause (b),
if any with the applicant.
(5) Any application which is found defective on
scrutiny may be returned by the Claims Tribunal for
being re-submitted after removing the defects within a
specified period not exceeding two weeks.
(6) Notwithstanding anything contained in sub-
rules (2) and (3) every application for a claim under
Section 140, shall be filed before the Claims Tribunal in
triplicate and shall be signed by the applicant and the
following documents be appended to every such
application, namely.-
(a) Panchanama of the accident;
(b) First Information Report;
(c) Injury Certificate or in case of death, post-
mortem report; and
(d) Certificate regarding ownership and
insurance particulars of vehicle involved in
the accident from the Regional Transport
Officer or the police authorities.
232-D. Police Reports under sub-section(6)
of Section 158 of the Act and action thereon.- (1)
On receipt of report mentioned in Form 54 appended to
the Central Motor Vehicles Rules, 1989, the Claims
Tribunal shall go through the same and may call for such
further information or material as considered necessary
for proper and effective action in accordance with sub-
section(4) of Section 166 of the Act.
(2) The Claims Tribunal after examination of
the report and further information/material if any, shall
register the claim case thereon. Notice for appearance
shall then be issued in Form 63-D to all parties
concerned which shall include the names of victim(s) of
the accident, or his/her/their legal representative(s), as
the case may be, driver, owner and insurer of the
vehicle(s) involved.
(3) On receipt of notice, the parties mentioned
in the forgoing provision shall appear and declare
through affidavit, if any claim case had either been
preferred or was being preferred in respect of the same
cause of action, and if so, the police report treated as
claim case would be tagged to such claim case preferred
independently by the parties.
(4) If the person(s) injured, or legal
representative(s) of the person(s) deceased do not
appear in response to the notice aforementioned in the
manner indicated above, the Claims Tribunal may
presume that the said parties are not interested in
pursuing the claim for any compensation in such
proceedings, and on such presumption it shall close the
case.
(5) Unless the police report treated as claim
case stands tagged to independent claim case preferred
by the parties themselves, the Claims Tribunal shall call
upon the person(s) injured or legal representative(s) of
the person(s) deceased, as the case may be and who
may have appeared in response to the notice, to submit
statement of facts regarding compensation, if any
claimed by them, which statement of facts shall be along
the lines required to be furnished in application inf Form
63-C.
(6) If statement of facts about compensation
claimed and basis thereof are furnished by the parties in
the manner indicated in sub-rule(5), the case shall be
further proceeded with in the same manner as required
to deal with applications moved by the parties for
compensation directly before the Claims Tribunal.
(7) If after statement of facts about
compensation claimed has been furnished by the party,
which subsequently commits default in appearance, the
provisions of Order 9 of the Code of Civil Procedure,
1908 (5 of 1908) would apply:
Provided that in case accident in question involves
more than one vehicle and persons connected to all such
vehicles stake claim for compensation, the police report
treated as claim case shall be presumed to be a claim
case preferred by each of them and absence by any one
or more of such parties shall not prejudice or affect the
claim of the party which continues to appear.
232-E. Inspection of the vehicle.- The Claims
Tribunal may, if it thinks fit, require the motor vehicle
involved in the accident to be produced by the owner for
inspection at a particular time and place to be
mentioned by it, in consultation with the owner.
232-F. Power to direct medical examination.-
The Claims Tribunal may if it considers necessary,
direct, in Form 63-E any Medical Officer or any Board of
Medical Officers in a Government or municipal hospital
to examine the injured and issue certificate indicating
the degree an extent of the disability, if any, suffered as
a result of the accident, and it shall be the duty of such
Medical Officer or Board to submit the report within
fifteen days of receipt of direction."
42. As could be seen from Rule 232, it is essentially the
duty of the Insurance Company to gather and secure full
information about the accident from the Investigating Police
Officer and also gather full information about the accident on
receipt of information or notice from the Claims Tribunal.
43. The Insurance Company is required to ascertain and
verify facts about the insurance of the motor vehicles
involved in the accident and confirm the same to the Claims
Tribunal within the thirty days of receiving notice of the claim
case Tribunal.
44. The Insurance Company is also required to move an
application before the concerned registering authority and
gather information about the motor vehicles involved and the
driving licence held by the drivers.
45. The Insurance Company is also required to deposit
along with written statement the amount equivalent to
compensation awardable under the principle of no fault
liability under Section 140 of the Act in such cases where the
information received by it confirms death or permanent
disabilities, which have resulted due to the accident.
46. It is thus clear that from the year 2013 at least, the
onus of establishing the accident is completely on the
Insurance Company. The Insurance Company is required to
gather full information of the accident, ascertain and verify
the fact of insurance of the vehicle involved in the accident
and confirm the same to the Tribunal.
47. This salutary and solemn duty cast on the Insurance
Company cannot be wished by the Companies and it cannot
shirk this responsibility cast on them statutorily by simply
collecting the documents of the prosecution, such as the FIR,
Statements and the Charge sheet and contend that they had
proved or disproved the occurrence of the accident.
48. In fact, Rule 232-A of the KMV Rules categorically
states that contents of the Accident Information Report (Form
54 of CMV Rules) and Information collected from the
registering authority about the motor vehicle involved in the
accident and the driving licence held by the driver (Form 63-B
of KMV Rules) shall be presumed to be correct and shall be
read in evidence without formal proof till the contrary is
proved.
49. Therefore, if an Accident Information Report or a report
of the Registering Authority, is produced before the Claims
Tribunal, the Tribunal can presume their contents to be
correct, unless the contrary is proved. This, therefore,
indicates that there is no burden cast upon the claimant at all
to prove the occurrence of the accident and the entire onus
on disproving the accident is on the Insurer.
50. The way in which the Rules are framed indicates that
that the intent of the legislature was to basically ensure that
a victim of a motor vehicle accident should be put to the least
amount of difficulty in securing compensation and the entire
duty to ascertain the facts relating to the accident would lie
on the Insurance Company.
51. In my view, if the Insurance Companies do not
discharge the duties imposed upon them under Rule 232 of
the KMV Rules, it will have to be held that the Insurance
Companies have accepted the occurrence of the accident and
would be liable to pay compensation if they have issued a
Certificate of Insurance.
52. It is also to be noticed here that after the amendment
of KMV Rules in 2013, as per Rule 232-D, the Accident
Information Report i.e., Form 54 is required to be examined
by the Tribunal and the Tribunal may also call for such other
information as it finds necessary and on receipt of the report,
the Tribunal is required to register a Claim Petition.
53. Thus, after the year 2013, the Accident Information
Report is itself to be treated as an initiation of a proceeding to
claim compensation and an obligation is cast upon the Claims
Tribunal to secure information and register a claim petition
and notify all the persons concerned.
54. In fact, Rule 232-D of the KMV Rules states that if the
Tribunal is informed of any claim case as already been
preferred, the case registered by the Tribunal on the basis of
Accident Information Report should be tagged along with the
claim case preferred by the claimant. This Rule thereby
indicates that virtually no burden is cast on the claimant to
even seek for compensation let alone prove or establish the
occurrence of the accident.
55. Unfortunately, in all most all cases, the claimants are
called upon to prove and establish beyond all reasonable
doubt that the accident had occurred. The Insurance
Companies, instead of following the procedure prescribed
under the KMV Rules are merely in the habit of producing
police records and contending that the accident did not occur
in the manner stated in the claim petition or that there were
severe discrepancies in the pleadings and evidence.
56. It is, therefore, necessary that all the Insurers and the
Claims Tribunals take note of the amendments made to the
KMV Rules in 2013 and ensure that their respective
obligations in ensuring the victims of motor vehicle accidents
secure their compensation.
57. Keeping this scheme of the Act and Rules in mind, if the
facts of this case are to be analysed, it is clear that the
claimant informed the Medical Officer within an hour of the
occurrence of the accident that he had suffered a road traffic
accident. This information was reiterated by the claimant
when he was shifted to the Government Hospital. These two
factors by themselves establish that a road traffic accident
had occurred resulting in injuries to the claimant.
58. The assertion that the police had investigated the
complaint and lodged a 'B' report and therefore, the version
of the claimant is to be disregarded cannot be accepted.
59. As noticed above, the Insurance Company has an
obligation to prove the accident or disprove the accident in a
manner acceptable in law. The mere production of a 'B' report
cannot lead to an inference that no accident occurred. The
Insurance Company ought to have produced independent
evidence to establish that the claimant had a fall from the
tree and mere reliance on 'B' report which stated that the
claimant had admitted as he had fallen from a tree cannot be
accepted.
60. In the instant case, as pointed out by learned counsel
for the claimant, filing of a 'B' report has also been challenged
by him in First Information Report No.625/2012 and the
learned I Additional Civil Judge and JMFC., Maddur, by an
order dated 28.09.2017 rejected the 'B' report and directed
for registration of a criminal case and ordered summons to
the accused.
61. From the above narrated facts, it is clear that there was
positive evidence in the form of entries in the medical records
that an accident had occurred and had resulted in injuries to
the claimant.
62. In the light of this evidence, the Tribunal was absolutely
justified in coming to the conclusion that a motor vehicle
accident did occur and the claimant did suffer injuries. The
appeal of the Insurer is thus without merit and is dismissed.
63. As far as the appeal by the claimant for enhancement is
concerned, the Tribunal has recorded a finding that the
claimant had sustained comminuted fracture shaft of left
femur and he was operated on 30.05.2012 and ORIF with
IMIL nailing was done. The Tribunal has taken note of the
evidence of the Doctor which was to the effect that the
claimant had surgical scar over the left thigh; tenderness
over the left gluteal regions; ROM, left hip flexion up to 90
degree; abduction and adduction decreased by 20 degree
each; rotations decreased by 20 degree each; ROM left knee
flexion up to 90 degree; left thigh muscle power decreased by
20%.
64. The Tribunal, having taken note of the Doctor's
assessment of permanent disability at 40% to the left lower
limb, has assessed the whole body disability at 12%. In my
view, this assessment of disability cannot be said to be, in
any way, improper and hence, the same is affirmed.
65. The Tribunal has further taken the notional income of
the claimant at `4,000/- per month, since there was no
credible evidence to establish the actual income of the
claimant. In my view, in such a situation, it would be
appropriate to adopt the notional income determined by the
Karnataka State Legal Services Authority, which would be a
sum of `7,000/- as the accident was of the year 2012.
66. Since the disability is maintained at 12% and the
multiplier of 18 is adopted as the claimant was aged 19
years, the claimant would be entitled to a sum of
`1,81,440/- (7,000 X 12 X 12% X 18) towards loss of future
earnings.
67. The Tribunal has awarded a sum of `45,000/- towards
pain and sufferings and `30,000/- towards loss of amenities
of life. The said award is just and proper and does not call for
any enhancement.
68. The Tribunal has also awarded a sum of `28,000/-
towards medical expenses and this assessment is based on
documentary evidence and hence, the said sum is also
maintained.
69. The Tribunal has awarded a sum of `12,000/- towards
loss of income during the period of treatment for three
months by considering the income of the claimant at
`4,000/- Since in this appeal, the notional income is taken
at `7,000/-, the claimant would be entitled to `21,000/-
under the said head.
70. The Tribunal has also awarded a sum of `8,000/-
towards future medical expenses, which, in my view, is just
and proper.
71. Accordingly, the appeal filed by the claimant is allowed
in part. Claimant is held entitled for the compensation as
under:
1 Loss of future earnings `1,81,440/-
2 Pain and Sufferings `45,000/-
3 Loss of amenities in life `30,000/-
4 Medical expenses `28,000/-
5 Loss of earnings during laid up `21,000/-
period
6 Future medical expenses `8,000/-
TOTAL `3,13,440/-
Thus, the claimant is entitled for enhanced compensation of
`3,13,440/-, with interest at 6% p.a. on `3,05,440/-
(`3,13,440/- less `8,000/- awarded towards future medical
expenses) from the date of petition till realisation.
The Insurance Company is directed to deposit the
amount of compensation within a period of two weeks from
the date of receipt of a certified copy of this judgment.
The amount, if any, deposited before this Court shall be
transmitted to the Tribunal for disbursement in terms of the
award of the Tribunal.
Registry is directed to circulate the copy of this
judgment to all the Motor Accident Claims Tribunals in the
State for information and necessary action.
Sd/-
JUDGE
PKS
