Karnataka High Court

Divisional Manager vs Veerabhadraiah on 27 May, 2021

Author: H.P.Sandesh

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 27TH DAY OF MAY, 2021

                           BEFORE

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

                   M.F.A.NO.4600/2013(MV)
                            C/W.
                   M.F.A.NO.7287/2013(MV)

IN M.F.A. NO.4600/2013(MV):

BETWEEN:
DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISONAL OFFICE
# 34/3, M.M.K. COMPLEX
AKKAMAHADEVI ROAD
P.J. EXTENSION
DAVANAGERE-577002.                           ... APPELLANT

             (BY SRI A.N.KRISHNA SWAMY, ADVOCATE)
AND:
1.     VEERABHADRAIAH
       S/O DODDANNA
       NOW AGED ABOUT 46 YEARS
       AGRICULTURIST, R/O T R NAGARA
       (BAPUJI COLLEGE ROAD), CHALLAKERE
       NOW R/A MADAKARIPURA VILLAGE
       CHITRADURGA TALUK

2.     RAJANNA S/O NINGANNA
       AGE: MAJOR
       OWNER OF MOTORCYCLE
       R/O # 66, HONJANALU
       TUMAKURU TALUK & DISTRICT             ... RESPONDENTS
              (BY SRI B.PRAMOD, ADVOCATE FOR R1;
                R2 - SERVED AND UNREPRESENTED)
                              2



      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.01.2013 PASSED IN
MVC.NO.1636/2009 ON THE FILE OF THE ADDITIONAL DISTRICT AND
SESSIONS    JUDGE AND      ADDITIONAL    MACT,   CHITRADURGA,
AWARDING A COMPENSATION OF Rs.85,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.


IN M.F.A.NO.7287/2013(MV):

BETWEEN:

VEERABHADRAIAH
S/O DODDANNA
NOW AGED ABOUT 49 YEARS
RESIDING AT T.R.NAGARA
(BAPUJI COLLEGE ROAD), CHALLAKERE
NOW R/A MADAKARIPURA VILLAGE
CHITRADURGA TALUK-577 501.
                                              ... APPELLANT
                (BY SRI B.PRAMOD, ADVOCATE)

AND:

  1. RAJANNA S/O NINGANNA
     AGE: MAJOR
     OWNER OF MOTORCYCLE BEARING
     REG. NO.KA-06-X-641
     RESIDING AT NO.66, HONJANALU
     TUMAKURU TALUK & DISTRICT-572 101.

  2. DIVISIONAL MANAGER
     THE UNITED INDIA INSURANCE CO. LTD.
     DIVISONAL OFFICE, MMK COMPLEX
     AKKAMAHADEVI ROAD
     P.J. EXTENSION
     DAVANAGERE-577001.
                                        ... RESPONDENTS
        (BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R2;
              R1 - SERVED AND UNREPRESENTED)
                                  3



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.01.2013 PASSED IN
MVC.NO.1636/2009 ON THE FILE OF THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, ADDITIONAL MACT, CHITRADURGA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

    THESE MFA's COMING ON FOR ADMISSION THROUGH 'VIDEO
CONFERENCE' THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Though the matters are listed for admission today, with

the consent of both the learned counsel for the parties, they are

taken up for final disposal.

These two appeals are filed by the Insurance Company and

the claimant, challenging the judgment and award dated

17.01.2013 passed in M.V.C.No.1636/2009, on the file of the

Additional District and Sessions Judge and Additional M.A.C.T.,

Chitradurga ('the Tribunal' for short).

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 it is the case of

the claimant that he had sustained the injuries in the road

accident that had taken place on 07.11.2006 at about 6.45 p.m.

near M.G. Circle, Hiriyur Town due to the rash and negligent

riding of the motor cycle bearing registration No.KA-06-X-641 by

its rider. As a result, he sustained fracture and subjected to

surgery. The claimant was a school teacher and due to the

accident, he could not attend his duty for a period of two

months. The said claim petition was opposed by the Insurance

Company by filing a detailed statement of objection and the

main contention which was taken in the said statement of

objections is that the vehicle has been falsely implicated in order

to get the compensation and to make a wrongful gain.

4. The claimant, in order to substantiate the claim,

examined himself as P.W.1 and also the doctor as P.W.2. The

claimant also got marked the documents at Exs.P1 to P9. The

respondent-Insurance Company also examined its official as

RW.1 and got marked the documents Exs.R1 and R2. The

Tribunal, after considering both oral and documentary evidence,

allowed the claim petition by granting compensation to the tune

of Rs.85,000/- with interest at the rate of 6% per annum. The

said award has been challenged by the Insurance Company by

filing an appeal in MFA No.4600/2013.

5. The main contention of the appellant/Insurance

Company in the appeal in MFA No.4600/2013 is that the Tribunal

has failed to consider the material on record with respect to the

fact that there was a delay of 4 months in lodging the complaint.

Though the accident had taken place on 07.11.2006, the

complaint was lodged on 06.03.2007. The Tribunal was also

required to analyze the contents of the document at Ex.R2,

which is the certificate issued by the Orthopedic Surgeon stating

that they do not have any medico legal documents relating to

the case of the claimant. The delay in filing the complaint would

itself clearly discloses that it is nothing but a false implication of

the vehicle in order to make a wrongful gain.

6. Learned counsel appearing for the

appellant/Insurance Company would reiterate the grounds urged

in the appeal memo and also would contend that the complaint

is filed after lapse of 4 months from the date of the accident.

The claimant, being a teacher has given the explanation that the

rider of the motorcycle has assured to meet the medical

expenses but later, he failed to do so and hence, there was a

delay in lodging the complaint. When there is a delay of 4

months in lodging the complainant, the reason so explained by

the claimant is not acceptable. Learned counsel appearing for

the appellant/Insurance Company would vehemently contend

that the Tribunal has failed to appreciate the material available

on record, particularly, the document at Ex.R2.

7. Per contra, learned counsel appearing for the

claimant, who is an appellant in MFA No.7287/2013, would

vehemently contend that the Tribunal has failed to award the

just and reasonable compensation and without taking note of the

nature of the injuries and the fracture suffered by the claimant,

the Tribunal has erroneously awarded a compensation of

Rs.25,000/- under the head of 'injuries, pain and sufferings'.

Learned counsel would further contend that the 'loss of income

during the laid up period' is also not considered by the Tribunal.

Instead an amount of Rs.3,000/- is awarded towards the

'incidental and miscellaneous expenses', which is on the lower

side. Learned counsel would further contend that the fact of the

treatment being taken by the claimant at Bengaluru though he

was the resident of Hiriyur, has also not been taken note of by

the Tribunal while awarding the compensation. Hence, it

requires interference of this Court. Learned counsel would also

vehemently contend that in order to substantiate the contention

made by the Insurance Company that the vehicle was falsely

implicated, nothing has been elicited in the evidence and also no

documentary evidence is placed before the Court to come to the

conclusion that the vehicle has been falsely implicated.

8. Having heard the arguments of the learned counsel

for the Insurance Company and the learned counsel for the

claimant, the points that would arise for the consideration of this

Court are:-

(i) Whether the appellant/Insurance Company has made out the ground that the vehicle has been falsely implicated in the case in order to make a wrongful gain by the claimant?

(ii) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires interference of this Court ?

Point No.1:-

9. Having heard the respective counsel and also on

perusal of the records, there is no dispute with regard to the fact

that the accident had occurred on 07.11.2006 at about 6.45

p.m. On perusal of the complaint and FIR, it is clear that the

complaint was given on 06.03.2007 in terms of Ex.P1. The other

documents relied upon by the claimant are Ex.P2 - the spot

panchanama, Ex.P3 - seizure mahazar and Ex.P4 - IMV Report,

in order to prove the accident. No doubt, the defence has been

taken in the statement of objections filed by the Insurance

Company that the vehicle has been falsely implicated in the

case. But in the cross-examination of P.W.1, nothing is elicited

with regard to the implication of the said vehicle. No doubt, the

respondent has examined its official as RW.1 in the case on

hand, but the Investigating Officer has not been examined.

When the respondent-Insurance Company has disputed the very

accident itself and contended that the vehicle has been

implicated in the case, the same could have been elicited by

examining the Investigating Officer but nothing has been done,

except relying upon the documents Exs.R1 and R2. Ex.R1 is the

copy of the insurance policy, which would not come to the aid of

the Insurance Company with regard to the defence that has

been taken up by them. However, the document at Ex.R2,

which is the certificate issued by the Jayanagar Orthopaedic

Center discloses with regard to the surgery which the claimant

had undergone and the date of admission and discharge from

the hospital.

10. The only contention raised by the Insurance

Company is that there are no medico legal documents related to

the case. Even if such documents are available, the same would

not come to the aid of the Insurance Company in proving its

contention that the vehicle is falsely implicated in the case to

make a wrongful gain. In the absence of any documentary

evidence or the rebuttal evidence on record, the contention of

the Insurance Company cannot be accepted. Hence, point No.1

is answered in the negative.

Point No.2:-

11. The contention which is raised by the learned

counsel for the claimant is that the Tribunal has committed an

error in awarding the compensation of Rs.25,000/- under the

head of 'injury, pain and sufferings'. In support of his

contention, he relied upon the document at Ex.P5 - wound

certificate with regard to the surgery. The main document,

which is at Ex.R2 produced by the respondent-Insurance

Company discloses that the claimant was subjected to surgery at

Jayanagar Orthopaedic Center and he was an inpatient for a

period of 15 days for having undergone surgery. On perusal of

Ex.R2, it discloses that the claimant had suffered tibial condylar

fracuture (L) and abrasion over the right elbow. Taking note of

the treatment undergone by the claimant, it is appropriate to

enhance the compensation awarded under the head of 'injury,

pain and sufferings' to Rs.35,000/- as against Rs.25,000/-.

Since the accident had taken place in the year 2006, the

Tribunal has also considered the medical expenses based on the

records. Hence, there are no grounds to interfere with regard to

awarding an additional compensation under the head of 'medical

expenses'.

12. Taking note of the compensation awarded under the

head of 'incidental and miscellaneous expenses' which is to the

tune of Rs.3,000/-, it is clear that the Tribunal has failed to take

note of the fact that the accident had taken place at Hiriyur

Town and thereafter, the claimant was shifted to Bengaluru,

where he took treatment being an inpatient for a period of 15

days and also undergone surgery. When such being the case,

awarding an amount of Rs.3,000/- under the head of 'incidental

and miscellaneous expenses, which includes food, nourishment

and conveyance etc., appears to be meagre and requires to be

enhanced to Rs.10,000/- as the accident is of the year 2006.

13. The Tribunal further awarded an amount of

Rs.20,000/- under the head of 'loss of amenities' but in respect

of 'loss of income during the laid up period' is concerned, no

compensation has been awarded. P.W.1 in the cross-

examination has categorically admitted that after 2 months of

the accident, he had reported to his duty. When such being the

case, the Tribunal ought to have awarded compensation under

the head of 'loss of income during the laid up period'. The fact

that the claimant is a school teacher is not in dispute. However,

in order to substantiate the same, no document has been

produced before the Tribunal showing his income. The Tribunal

while assessing the 'loss of amenities', taken note of the fact

that he was a school teacher. In the absence of any

documentary proof regarding loss of income for a period of two

months and the accident had taken place in the year 2006, it is

appropriate to award an amount of Rs.20,000/- for two months

on guess work. Accordingly, the claimant is entitled to a total

compensation of Rs.1,22,000/- as against Rs.85,000/-.

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

ORDER

(i) The appeal in MFA No.4660/2013 is dismissed.

(ii) The appeal in MFA No.7287/2013 is allowed in part. The judgment and award passed by the Tribunal in MVC No.1636/2009 is modified by granting a compensation of Rs.1,22,000/- with interest at the rate of 6% per annum from the date of petition till realization.