The Branch Manager vs Parasappa S/O Basappa Madar Anr
2022 Latest Caselaw 6282 Kant

                              1




IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

         DATED THIS THE 7TH DAY OF APRIL, 2022

                           BEFORE

            THE HON'BLE MS.JUSTICE J.M.KHAZI

                 MFA No.31269/2013 (MV)

  BETWEEN:

  THE BRANCH MANAGER,
  NATIONAL INSURANCE CO. LTD.,
  S.S. FRONT ROAD,
  BIJAPUR
  NOW REPRESENTED BY
  ITS ASST. MANAGER
  NATIONAL INSURANCE CO. LTD.,
  GULBARGA.
                                          ...APPELLANT
  (BY SRI. S.S. ASPALLI, ADVOCATE)

  AND:

  1.     PARASAPPA
         S/O BASAPPA MADAR
         AGE: 23 YRS,
         OCC: PVT. SERVICE
         IN JAI JAVAAN GEN. STORES
         R/O SASNUR TQ,
         B' BAGEWADI
         DISTRICT BIJAPUR.

  2.     RAMESH
         S/O GULAB SINGH PATTAR
         AGE: 42 YEARS,
         OCC: BUSINESS
         R/O BHARATAGI TQ,
         DIST. BIJAPUR
                                      ... RESPONDENTS
                               2




(BY SRI. S.S.MAMADAPUR, ADVOCATE FOR R1;
    SRI. SANGANAGOUDA V BIRADAR, ADVOCATE FOR R2)

      THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD IN MVC
NO.1656/2011 DATED 12.03.2013 PASSED BY THE I ADDL. SR.
CIVIL JUDGE & MACT NO.VI - BIJAPUR, BY ALLOWING THE
ABOVE APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON    18.01.2022, COMING   ON    FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-


                        JUDGMENT

This appeal is by the respondent No.2-Insurance

Company, challenging the impugned judgment and award,

whereby it is directed to pay compensation in a sum of

Rs.1,63,700/- with interest at 7% p.a. for the injury

sustained by the petitioner in an alleged accident dated

12.07.2011.

2. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

3. FACTS: The facts leading to the filing of the

claim petition are that on 12.07.2011 at about 7.30 p.m.

petitioner was waiting to cross the road opposite N.C.C

Office Bijapur. At that time auto rickshaw bearing

registration No.KA-28/A-491 (hereinafter referred to as

offending vehicle) driven by its driver in a rash or

negligent manner from Banjara Cross towards Bijapur

came in a high speed and dashed against the petitioner. In

the said accident, petitioner sustained injuries and

immediately he was shifted to BLDE Hospital, Bijapur for

treatment and he took treatment in the said hospital as

impatient for 15 days. He also underwent operation.

3.1. At the time of accident petitioner was aged 21

years. He was working in a general stores and earning

Rs.8,000/- p.m. After the accident he was unable to

continue his work and suffered loss of income. Respondent

No.1 being the owner and Respondent No.2 being the

insurer are liable to pay the compensation.

4. In his written statement respondent No.1 has

denied the entire case of the petitioner. He has pleaded

that at the time of alleged accident the vehicle was duly

insured with respondent No.2. In the event of allowing the

petition, respondent No.2 may be directed to pay the

compensation.

5. Respondent No.2 has filed written statement

contending that the petition is false, frivolous and

vexatious and liable to be dismissed with costs. The vehicle

in question was covered by valid policy but liability of

respondent No.2 is subject to the terms and conditions of

the policy.

5.2 Respondent No.2 has denied the involvement

of the offending vehicle in the alleged accident. Petitioner,

owner of the offending vehicle colluding with the police

officials have managed to implicate it for the purpose of

recovering the compensation from respondent No.2 and as

such petition is liable to be dismissed with a cost of

Rs.5,000/-. They have played fraud on the respondent

No.2 by planting the offending vehicle.

5.3 As evident from the documents placed on

records, petitioner was admitted to BLDE Hospital on

16.07.2011 at 12.00 p.m., wherein the age of the injury is

stated to be within 24 hours of his examination.

Consequently, petitioner has sustained the alleged injuries

on 15.07.2011, but has falsely implicated the offending

vehicle alleging that accident took place on 12.07.2011.

Respondent No.2 has denied the age, occupation and

income of the petitioner, nature of the alleged injury

sustained by him, treatment taken and expenses incurred

for the alleged treatment. The compensation claimed is

highly exorbitant and prays to dismiss the petition as

against respondent No.2.

6. Based on the pleadings, Tribunal has framed

the issues.

7. In support of petitioner's case, including the

petitioner PWs-1 to 3 are examined and Exs-P1 to 10 are

marked. On the other hand, on behalf of respondent No.2,

RW-1 is examined and Ex-R1 and R2 are marked.

8. Vide the impugned judgment and award the

Tribunal has partly allowed the claim petition and granted

compensation in a sum of Rs.1,63,700/- with interest

@7% p.a. and directed respondent No.2 to pay the same.

The details of compensation granted are as under:

                     Heads                   Amount
                                              In Rs.
     Pain and sufferings                           25,000
     Medical expenses                              5,900
     Loss of earning during laid up period        15,000
     Loss of future earning on account of         77,760
     permanent disability
     Loss of amenities and future                 15,000
     unhappiness
     Attendant, diet, conveyance and other        10,000
     charges
     Award amount on permanent disability         15,000
     TOTAL                                     1,63,660

9. Respondent No.2 has challenged the impugned

judgment and award contending that the offending vehicle

is not at all involved in the alleged accident. There is delay

of 6 days in filing the complaint and the cause of delay is

not at all explained. The petitioner was admitted to the

hospital on 16.07.2011 wherein the age of injury is stated

to be 24 hours from the time of examination, which means

that the accident has occurred on 15.07.2011. Petitioner

has not produced any documents to show that he has

taken treatment in between 12.07.2011 to 16.07.2011.

Even though all these factors are brought to the knowledge

of the Tribunal, it has not appreciated the evidence placed

on records based on these facts and mechanically

proceeded to allow the petition fastening the liability on

respondent No.2.

9.2 The respondent No.2 has further contended

that, nature of the injuries sustained by petitioner are not

in consonence with the alleged road traffic accident

involving the offending vehicle. It goes to show that

respondent No.1 has joined hands with the petitioners to

falsely involve the offending vehicle only to get

compensation from respondent No.2.

9.3 It is further case of the respondent No.2 that

the compensation granted is on the higher side, without

any basis and without appreciating the evidence placed on

record and prays to allow the appeal and set aside the

impugned judgment and award as against respondent

No.2.

10. On the other hand the learned counsel

appearing for the petitioner as well as respondent No.1

have supported the impugned judgment and award and

sought for dismissal of the appeal.

11. Heard arguments and perused the records.

12. The points that arise for my consideration are:-

Point No(i): Whether the respondent No.2 has made out any justifiable grounds to interfere with the impugned judgment and award, so far as fastening the liability on respondent No.2 ?

Point No ii): What order ?

13. My findings on the above points are:-

Point No(i):- In the Affirmative

Point No(ii): As per the final order for the following:

REASONS

14. Point No (i): It is pertinent to note that the

petitioner has not challenged the impugned judgment and

award.

15. It is the definite case of the petitioner that the

accident took place on 12.07.2011 at about 7.30 p.m.

while he was waiting to cross the road. However, he was

admitted to BLDE Hospital on 16.07.2011. In the petition,

petitioner has not stated on what date he filed the

complaint. He has also not pleaded whether in between

12.07.2016 to 16.07.2011 he has taken any treatment, if

so with whom. However, during the course of his affidavit

evidence petitioner has stated that immediately after the

accident, the people who gathered at the scene of

occurrence got him treated privately. After he suffered

pain he got himself admitted to BLDE Hospital and

underwent operation. He was impatient for 15 days.

16. However, during his cross examination when

questioned about the treatment taken before 16.07.2011,

PW.1 has answered that he do not remember the said fact.

If petitioner is not able to remember the said fact, he could

have produced documents by collecting the same with the

help of others.

17. He has also stated that he do not remember

the names of the persons who have witnessed the

accident. When respondents, more specifically respondent

No.2 is disputing that accident has taken place involving

the offending vehicle in question, it becomes necessary for

the petitioner to place on record the names of the persons

who have witnessed the incident and also the Doctor with

whom he took treatment immediately after the accident.

He could have examined any of those persons who shifted

him to the hospital to know the truth of the facts. For

reasons best known to him the petitioner has not chosen

to divulge these facts and necessarily an adverse inference

has to be drawn.

18. Now coming to the documents which are

placed on record with regard to the alleged road traffic

accident. Though the alleged accident has taken place on

12.07.2011, for the reasons best known neither the

petitioner nor the persons who have witnessed the incident

have chosen to file the complaint immediately. In the

complaint petitioner has stated that he has taken

treatment privately meaning in a private hospital or clinic

for having undergone treatment in a private clinic/hospital

and also at the BLDE Hospital, is the reason for the delay

in filing the compliant.

19. It is relevant to note that the compliant is filed

on 18.07.2011 after lapse of 6 days. Ex.P4 is the wound

certificate issued by the BLDE Hospital, wherein it is stated

that the patient was admitted to the hospital on

16.07.2011 with the injuries said to have been caused by

auto-rickshaw. The age of the injury is given as within 24

hours from the time of his examination. If this document is

accepted as correct, then the accident might have

happened on 15.07.2011 and not on 12.07.2011 as

contended by the petitioner.

20. In fact, copy of Ex-P4 is produced by PW-3 at

Ex-P14. The next page of this document is the history

sheet, wherein it is stated that the patient was hit by an

auto-rickshaw near Subhashree Hotel on 12.07.2011 and

brought to the casualty on 16.07.2011 at 11.45 a.m. In

this regard, PW-3 has stated that by mistake he has noted

the age of injury as 24 hours. A suggestion is made to PW-

3 that he has subsequently added the averments with

regard to accident having taken place on 12.07.2011 to

help the petitioner.

21. It is relevant to note that the contents of

wound certificate would be based on the medical records

maintained by the hospital. By the appearance of the

injury and based on the information furnished by the

patient, the age of the injury would be noted. At any

stretch of imagination it cannot be accepted that by

mistake, PW-3 has committed such a blunder. One more

important aspect which is to be noted is that in the wound

certificate it is specifically mentioned that petitioner is

already having suture to the wound which goes to show

that he has taken the treatment earlier. In fact this

observation is also forthcoming in the back page of the

history below the caption "Physical Examination". The fact

of petitioner having sutured wound is also forthcoming in

the subsequent pages of the Doctors orders.

22. Page 80 of the TCR contains copy of letter

dated 23.07.2011 addressed to the Medical Superintendent

BLDE Hospital intimating the admission of a patient with

medico-legal history and at the end of the letter, it is

specifically noted that intimation has been sent to the

police. These documents creates a doubt as to the veracity

of the petitioner's claim that he sustained the injuries in

question in a road traffic accident dated 12.07.2011.

23. It is pertinent to note that according to the

medical records, petitioner has sustained fracture of

occipital bone and that he has undergone operation. On

12.07.2011 if at all petitioner has suffered fracture of

occipital bone, it cannot be expected that he would keep

quiet without taking any treatment till 16.07.2011. In fact

while he was admitted to the BLDE Hospital, he had

sutured wound which goes to show that he had already

taken treatment. For reasons best known to him petitioner

has not chosen to produce the said documents and

consequently an adverse inference is required to be drawn

that if produced those documents would go against his

interest and as such he has suppressed them.

24. Inspite of pointing out the discrepancies in the

case of the petitioner and respondent No.2 taking a

specific defence that it is a fraudulent claim, the Tribunal

has not paid any attention to these aspects and

mechanically proceeded to pass the award fastening the

liability on respondent No.2. The findings recorded by the

Tribunal is contrary to the evidence placed on record and

as such it is perverse.

25. Now coming to the quantum of compensation

granted, the petitioner has contended that after the

accident, he has suffered permanent partial disability and

loss of earning capacity. To establish this fact, petitioner

has relied upon the evidence of PW-2 Dr. Sadashivappa

Bedar who is a General Surgeon. He is not the treating

doctor. He has only issued the disability certificate. It is

pertinent to note that the disability certificate at Ex-P9 is

dated 08.10.2012. PW-2 is a Doctor practising at Bijapur.

BLDE Hospital is also situated at Bijapur. The petitioner

has not chosen to secure the disability certificate from the

Hospital in which he has taken treatment as in-patient and

also undergone operation. For reasons best known to him

he has chosen to take the disability certificate from a

person who is not a treating Doctor and also who is not a

Neuro surgeon. The disability certificate states that

petitioner has suffered 22+25% Neurological disability.

26. However, in the letter which is at Page 80 at

TCR, addressed to Medical Superintendent, it is stated that

the patient is fit for discharge. After discharge from the

hospital, admittedly petitioner has not taken any further

treatment. Only in the disability certificate, it is stated that

he was complaining of headache and other problem. In the

absence of petitioner taking any further treatment after

discharge from BLDE Hospital, it appears only for the

purpose of securing higher compensation, he has chosen

to secure disability certificate from a non-treating Doctor

who is a Surgeon and not competent to examine the

Neurological problems allegedly suffered by the petitioner.

Therefore, the disability certificate at Ex-P9 as well as the

evidence of PW-2 are not helpful to the petitioner.

27. Without examining these aspects, the Tribunal

has mechanically proceeded to grant compensation under

the head Future loss of income. Anyhow from the material

placed on record it is established by respondent No.2 that

it's a fraudulent claim put forth by the petitioner falsely

implicating the offending vehicle which is covered by valid

policy in order to see that respondent No.2 Insurance

Company shell down the compensation.

28. In this regard the learned counsel for

respondent No.2 has relied upon reported decision of the

Division Bench of this Court in (2009) 1 Karnataka

Accident Claims Journal 500 (Karnataka) in the

matter of Veerappa and another Vs Siddappa and

another where in also the Hon'ble Division Bench of this

Court held that the claim of the petitioner therein was

fraudulent and that the owner as well as the concerned

police were colluding with the petitioner to enable him to

get the compensation. Therefore the Division Bench upheld

the decision of the Tribunal in dismissing the claim

petition. It went a step ahead and fastened the liability on

the owner, on the ground that he has admitted the

involvement of the vehicle.

29. However in the present case respondent No.1

has formally denied the involvement of the vehicle. It is

not clear whether in the criminal case, the driver of the

offending vehicle has pleaded guilty. However, based on

the evidence placed on record, the Tribunal has fixed the

liability on respondent Nos.1 and 2 jointly and severally

and directed respondent No.2 to deposit the compensation

amount. Now, in this appeal respondent No.2 has

successfully established that the claim of the petitioner is

fraudulent and only in order to make respondent No.2

Insurance Company to pay the compensation, the

offending vehicle is implicated with the active connivance

of the Police. The Investigating Officer without properly

conducting the investigation has filed the charge sheet as

per Ex-P5. In the result respondent No.2 succeeds

accordingly Point No.(i) is answered in the Affirmative.

30. Point No.(ii): In view of my findings on Point

No. (i), I proceed to pass the following:

ORDER

(a) Appeal filed by respondent No.2 is allowed.

(b) The impugned judgment and award is set aside insofar as fastening the liability on respondent No.2 is concerned.

(c) Appellant/Respondent No.2 is entitled to withdraw the statutory amount deposited by it.

(d) The Registry shall transmit the trial Court records along with copy of this judgment forthwith.

Sd/-

JUDGE

NM/RR