Karnataka High Court
The National Insurance Co. Ltd vs Ramesh S/O Manjappa Naik on 22 June, 2022
Bench: P.Krishna Bhat
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MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO. 24958 OF 2010 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 23554 OF 2010
IN MISCELLANEOUS FIRST APPEAL NO. 24958 OF 2010
BETWEEN:
RAMESH MANJAPPA NAIK,
AGE: 35 YEARS, OCC: Z.P. CONTRACTOR,
R/O KUPPIHALLI, TQ. SIRSI, DIST. U.K.
...APPELLANT
(BY SRI. A A SAVANUR.,ADVOCATE)
AND:
1. MAHABALESHWAR BASAVANNI NAIK,
AGE: 35 YEARS,
OCC: DRIVER AND OWNER OF THE MOTOR BIKE
R/O. MALAGOVAN, TQ. SIRIS, DIST. U.K.
2. NATIONAL INSURANCE CO. LTD.,
B. O. 1ST FLOOR, 1648,
KAIKINI ROAD, TQ. KARWAR, DIST. U.K.
...RESPONDENTS
Digitally signed
by JAGADISH T
R
Location: HIGH
(BY SRI. S. K. KAYAKMATH, ADV., FOR R2;
COURT OF
KARNATAKA,
R1- NOTICE SERVED)
DHARWAD
Date:
2022.06.24 THIS MFA IS FILED U/SEC.173(1) OF M.V. ACT, 1988,
10:22:48 +0530
AGAINST THE JUDGMENT AND AWARD DATED:17.05.2010,
PASSED IN M.V.C. NO.19/2008, ON THE FILE OF THE ADDL.
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MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
M.A.C.T. SIRSI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MISCELLANEOUS FIRST APPEAL NO. 23554 OF 2010
BETWEEN:
THE NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, 1ST FLOOR,
KAIKINI ROAD, TQ: KARWAR, DIST: KARWAR.
REP. BY THE ADMIN OFFICER,
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, SUJATHA COMPLEX,
P.B.ROAD, HUBLI.
...APPELLANT
(BY SRI. S K KAYAKAMATH, ADVOCATE)
AND:
1. RAMESH S/O MANJAPPA NAIK
AGE: 33 YEARS, OCC: Z.P. CONTRACTOR,
R/O: KUPPIALLI, TQ: SIRSI, DIST: KARWAR.
2. MAHABALESHWAR BASAVANNI NAIK
AGE ABOUT 37 YEARS,
OCC: DRIVER AND OWNER OF THE MOTOR BIKE,
R/O: MALAGAON, POST: MALAGAON,
TQ: SIRSI, DIST: KARWAR.
...RESPONDENTS
(BY SRI. A A SAVANUR, ADV., FOR R1;
SRI. P. G. KULKARNI, ADV., FOR R2)
THIS MFA IS FILED U/SEC.173(1) OF THE MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DTD:17-05-2010 PASSED
IN MVC NO.19/2008 ON THE FILE OF THE MEMBER, ADDL. MACT,
SIRSI, AWARDING THE COMPENSATION OF RS.75,000/- WITH
INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF
PETITION TILL DATE OF DEPOSIT.
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MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT, DELIVERED THE FOLLOWING.
JUDGMENT
These appeals are at the instance of the Insurance
Company and the claimant calling in question the
judgment and award dated 17.05.2010 in MVC 19/2008 on
the file of the Additional Motor Accident Claims Tribunal,
Sirsi (for short "the Tribunal") by which the claim petition
was allowed in part awarding compensation of Rs.75,000/-
with interest thereon at 6% per annum from the date of
petition till the date of payment.
2. The facts in brief are to the effect that on
08.11.2006 while claimant was riding his motorcycle
bearing registration No.KA-31/E-8545 with his father as a
pillion rider from Sirsi to Kuppalli, the offending motorcycle
bearing registration No.KA-31/K-4086 with its rider riding
it in a rash and negligent manner and in high speed
dashed against the motorcycle of the claimant resulting in
grievous injuries to him. On claim petition being filed, the
MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
owner of the offending motorcycle remained ex-parte. The
Insurance Company contested the proceedings by filing its
written statement.
3. During trial, the claimant examined himself as
PW1 and examined the medical expert as PW2 and one
more witness as PW3. Ex.P1 to Ex.P52 were marked. The
Insurance Company examined one of its officials as RW1
and Exs.R1 to R4 were marked.
4. The learned Tribunal, after hearing the learned
counsel on both sides and perusing the records, allowed
the claim petition in part awarding compensation as noted
hereinabove.
5. The learned counsel for the appellant-Insurance
Company strenuously contended that the offending vehicle
was falsely involved in this case and therefore, claim
petition as against the appellant ought to have been
dismissed. In this connection, he submitted that the
private complaint was lodged six days after the accident
MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
and in the said private complaint, the date of the accident
was mentioned as 09.11.2006 whereas the case of the
claimant is that accident had taken place on 08.11.2006.
She also submits that wound certificate-Ex.P4 shows
history of fall. The other appeal is at the instance of the
claimant seeking enhancement of the compensation
awarded by the learned Tribunal, which is impugned
herein.
6. I have given my anxious consideration to the
contentions on rival sides and I have carefully perused the
records.
7. In regard to the occurrence of the accident as
projected in the claim petition, it is pleaded in the petition
that the accident had taken place on 08.11.2006 at about
10.00 p.m., when the claimant was riding the motorcycle
with his father as a pillion rider, the offending motorcycle
came in rash and negligent manner and dashed against
the motorcycle of the claimant resulting in grievous injury
to him. The substantial grievance of the Insurance
MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
Company is that firstly no police complaint was lodged till
14.11.2006 when the father of the claimant filed a private
complaint before the Court. Secondly, that the date of the
accident mentioned in the private complaint is 09.11.2006.
The third grievance is that, in wound certificate (Ex.P4),
the history of the accident given as fall at about 10.00
p.m. I do not find much substance in the said submission
made on behalf of the Insurance Company inasmuch as
the statement of objections filed by the appellant-
Insurance Company is very revealing on this aspect.
Paragraph 5 of the statement of objections, which is
relevant for the said purpose reads as follows:
"5. As per the information received, there was no
negligence on the part of the respondent no.1 who was
riding the vehicle in a moderate speed by observing all
the traffic rules. On the other hand, the petitioner
himself was riding his Motor Bike in a rash and
negligent manner and great speed and dashed against
the bike of the respondent no.1 bearing no.KA-31-K-
4086. There must have been a contributory negligence
on the part of the petitioner only. The bike bearing
no.KA-31/K-4086 was insured with this respondent for
the period from 18.01.2006 to 17.01.2007 and the
policy was effective and valid on the day of accident."
8. The above narration of the facts in the
statement of objections of the Insurance Company before
MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
the learned Tribunal shows that there was no dispute by
the Insurance Company about the accident as such and
involvement of the offending motorcycle in the same by
the appellant, but the dispute is only about the negligence
and so called contributory negligence by the claimant.
Even otherwise, the wound certificate shows that the
accident had occurred on 08.11.2006 and the charge sheet
filed also shows the same. In view of the above materials
available before the learned Tribunal, the delay in lodging
the private complaint cannot be made much of. The series
of treatment taken by the claimant from 08.11.2006 in
S.S.Hospital Sirsi and subsequently at Manipal North-side
Hospital, Bengaluru also corroborate the same. Therefore,
I do not find any good ground to interfere with the finding
regarding the negligence recorded by the learned Tribunal
and accordingly there is no merit in the appeal of the
Insurance Company and it is liable to be dismissed.
9. Insofar as the enhancement sought by the
claimant in the compensation awarded by the learned
Tribunal is concerned, I do not find any merits either. It is
MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
no doubt true that the series of documents commencing
from Ex.P4, Ex.R3 and the medical records produced from
Manipal Northside Hospital, Bengaluru coupled with the
statement of objections filed by the appellant-Insurance
Company clearly show that the accident had taken place
on 08.11.2006 and the claimant had suffered some
injuries. After assessing the same, the learned Tribunal
has awarded a compensation of Rs.75,000/- with interest
thereon. In regard to the medical records produced from
Manipal North-side Hospital by the claimant for claiming
higher compensation is concerned, a careful reading of
Ex.P4 and Ex.P47 make out a story that taking advantage
of the accident suffered by the claimant on 08.11.2006 he
has made an effort with aid of Ex.P4 and Ex.P47 to claim a
higher compensation for the injuries with regard to the
fracture he had suffered two-three years prior to the
accident in question. Ex.P4 insofar as contents thereof is
relevant for the above purpose reads as follows:
"Details of Injuries/Clinical Features (Nature, Exact
Situation, Dimension, Fresh/Healing)
MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
H/o of RTA on 8/11/2006, h/o fall at about 10.00 to
10.30 p.m. sustained trauma to right arm ; no history
of Ext wounds, c/o. pain in right arm and deformity
right arm; past history of patient was operated for
fracture of right humerus at Shimoga about 4-5 years
ago (?) diagnosed to be having non-union.
O/E Deformity positive, tenderness positive, no
abnormal noted neurologically (?)
Patient went against medical advice on 10/11/06
without undergoing any treatment here."
10. Further, Ex.P47 reads as follows:
"DISCHARGE SUMMARY
DEPARTMENT OF ORTHOPADICS
NAME: MR.RAMESH I.P NO:10699/06
AGE: 30 YEARS/MALE D.O.A:10/11/2006
D.O.D:16/11/2006
CONSULTANT: DR.K. SRINIVASAN
FINAL DIAGNOSIS: HUMERUS NON UNION WITH
IMPLANT (FAILED) IN SITU AND WITH RADIAL N.PALSY
PRESENTING COMPLAINTS:
C/o. pain and deformity of right arm since 3 days.
Patient was apparently alright 3 days back, when he
sustained injury to right arm. Patient was having pain
in right arm and unable to use the arm.
H/o fracture of right turmers 3 years weeks ------- was
operated by =/= and plate was put. H/o. exertional
dyspnea. Patient was adviced for operation as the
fracture was not uniting satisfactorily.
COURSE IN THE HOSPITAL:
3 year old fracture, non union of right humerus with
implant in SITU, resustained injury to same location, 4
days back, developed Radial Nerve Plasy, Explained
about the benefits and surgical procedure, possible
complications during and after surgery, RE-OSTEO
SYNTESIS after failed implant in SITU removed, radial
nerve exposed, found Multiple level Neuroma in-
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MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
contineuity. No added deficits post operatively. Drain
removed and dressing changed on second day.
Active/Assisted. Mobilisation started. Status at the time
of discharge is satisfactory.
SURGERY:
Humerus Implant Exit, Re osteosynthesis with Broad
LCDCP and Bone Grafting (Allograft) done under GA on
14/11/06. Per & cost operative period uneventful.
Antibiotics & analgesics were given as indicated. No
period deficits post operatively."
11. The above clearly shows that the fracture of
right humerus was three years old. If the said fracture had
taken place on 08.11.2006 as sought to be canvassed on
behalf of the claimant, there was no question of doctors at
Manipal North-side Hospital noting as humerus non-union
within a week thereof. However, since he had already
suffered the said injury and the accident taking place on
account of rash and negligent driving by the rider of the
offending motorcycle on 08.11.2006 might have caused
some aggravation to the pre-existing injury and therefore,
the compensation already granted by the learned Tribunal
need not be interfered with. In view of the above, the
appeal of the claimant also is devoid of merits and the
same is required to be dismissed. Hence, the following:
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MFA No. 24958 of 2010
C/W MFA No. 23554 of 2010
ORDER
Both the appeals are dismissed.
The amount in deposit, if any, made by the
Insurance Company along with records shall be
transmitted to the jurisdictional Tribunal
forthwith.
The balance amount, if any, shall be
deposited by the Insurance Company within a
period of six weeks from today before the
learned jurisdictional Tribunal.
In view of disposal of the appeals, pending
interlocutory applications, if any, do not survive
for consideration and are dismissed accordingly.
Sd/-
JUDGE
YAN
