The Manager vs Suresh
2022 Latest Caselaw 5647 Kant

                          1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 29TH DAY OF MARCH, 2022

                       BEFORE

 THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

MISCELLANEOUS FIRST APPEAL NO.2275/2012(MV)

BETWEEN:

THE MANAGER
UNITED INDIA INSURANCE CO LTD.
NO.198, MANJUNATHA COMPLEX
II FLOOR, CMH ROAD, INDIRANAGAR
BENGALURU-560 038

BY

REGIONAL MANAGER
UNITED INDIA INSURANCE CO LTD.
5TH FLOOKR, KRISHI BHAVAN
NRUPATHUNGA ROAD, HUDSON CIRCLE
BENGALURU-560 001
                                        ...APPELLANT

(BY SRI. O. MAHESH, ADVOCATE)

AND:

1.     SURESH S/O SIDDARAMAPPA
       AGED 29 YEARS
       NO.13, TIRUMALA NAGAR
       ATTUR LAYOUT, 2ND STAGE
       YELAHANKA NEW TOWN
       BENGALURU-560 064

2.     BASAVARAJ S/O RAJSHEKHAR
       AGED 26 YEARS
                           2

     NO.57, 4TH BLOCK, DODDABOMMASANDRA
     VIDYARANYAPURA
     BENGALURU-560 097

3.   SIDDALINGA REDDY S/O SIDDALINGAPPA
     AGED 25 YEARS
     NO.13, TIRUMALANAGAR
     ATTUR LAYOUT, 2ND STAGE
     YELAHANKA NEW TOWN
     BENGALURU-560 064

                                      ...RESPONDENTS

(BY SRI. BASAVARAJ KAREDDY, ADVOCATE FOR R1,
    R2-NOTICE HELD SUFFICIENT V/O DT: 08.07.2014,
    R3-SERVED)


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
2.5.2011 PASSED IN MVC NO.7905/2008 ON THE FILE
OF MEMBER, MACT, IV ADDITIONAL JUDGE, COURT OF
SMALL    CAUSES,    MEMBER,   MACT,   BANGALORE,
AWARDING A COMPENSATION OF RS.3,47,200/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION
TILL PAYMENT AND ETC.,

     THIS M.F.A. COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                   JUDGMENT

This appeal is filed under Section-173(1), of the

Motor Vehicles Act, 1988 by the appellant - insurance

company, challenging the judgment and award dated

02.05.2011, passed in MVC No.7905/2008, on the file of

MACT, at Bangalore.

Brief facts:

2. The averments of the petition in brief are that

on 01.01.2008 at about 2.30 a.m., when the petitioner

was proceeding on the motor cycle bearing registration

No.KA-03-EM-4602 belonging to the respondent No.2 as a

pillion rider, the respondent No.1 who was riding the same,

rode it in high speed rash and negligent manner so as to

endanger human life and dashed to a parked tempo near

Ulsoor lake on Kensington road, Military Campus,

Bangalore resulting in grievous injuries to the claimant.

After the accident, the claimant was taken to Bowring

Hospital and from there, he was taken to the Sagar Apollo

Hospital, Bangalore.

3. Hence, a claim petition was filed by the claimant

under Section-166 of the M.V. Act, claiming compensation

for the injuries sustained in the accident. The Tribunal on

appreciating the materials on record, allowed the petition

in part, and awarded a compensation of Rs.3,47,200/-

along with interest at 6% per annum, from the date of

petition till the date of deposit. The Tribunal held the

appellant - insurance company, liable to pay the

compensation.

4. The learned counsel for the appellant -

insurance company submitted that the claim petition is not

maintainable as the respondent No.1 - claimant was riding

the motor cycle and upon his mistake, the accident has

occurred. But respondent No.1 - claimant was projected as

pillion rider wrongly, just to claim compensation. But in

fact respondent No.1-claimant was the rider of motor

cycle. Therefore, the claim petition ought to have been

rejected. Hence, the Tribunal committed an error in

allowing the petition and awarding compensation to the

claimant - respondent No.1.

5. Further, submitted that as per Section-134(c)

of the Motor Vehicles Act, 1988 (for brevity 'MV Act'), the

owner of the vehicle has not intimated the insurance

company regarding the accident. Hence, the provisions of

Section-134(c) of the MV Act is not complied with. Further,

the learned counsel submitted that the Investigating

Officer has not intimated the factum of the accident to the

insurance company as required under Section-158(6) of

the MV Act. Therefore, the insurance company is not

liable to pay the compensation. Therefore, prays to allow

the appeal by setting-aside the impugned judgment and

award passed by the Tribunal.

6. Further, the learned counsel for the appellant -

insurance company submitted that Section-39 of Cr.P.C.,

is not complied with by Respondent No.1-complainant or

no other person, since they have not intimated to the

nearest Magistrate or Police Officer of such incident.

Therefore, there is no compliance of Section-39 of Cr.P.C.

Further, Rule-233 of Karnataka Motor Vehicles Rules, 1989

is also not complied.

7. The learned counsel further submitted that

One Basavaraj was the rider of the motor cycle. But there

is no evidence that Basavaraj had sustained injuries in the

accident, but only respondent No.1 - claimant has

sustained injuries, which is highly improbable to believe

the version of the claimant.

8. Further submitted if the motor cycle had

dashed to the parked tempo, then both rider and pillion

rider would have sustained injuries, but there are no

evidence that Basavaraj had also sustained injuries.

Therefore, this goes to prove that respondent No.1-

claimant was riding the motor cycle and he dashed the

parked tempo and sustained injuries. But later on, it was

projected that respondent No.1-claimant was pillion rider

of the motor cycle just to claim compensation. Therefore,

in this regard the Tribunal had not appreciated the

evidence on record correctly. Hence, prays to allow the

appeal by setting aside the judgment and award passed by

the Tribunal.

9. Further, the learned counsel for the appellant -

insurance company submitted that there is a delay of 13

days in lodging the complaint and in this regard there are

every chances of manipulation to project the respondent

No.1 - claimant as pillion rider. Therefore, this delay is not

explained. Hence, it is fatal to the claimant's case.

10. On the other hand, the learned counsel

appearing for respondent No.1-claimant submitted that

respondent no.1-claimant was pillion rider and was not

riding the motor cycle. In this regard, the Tribunal has

rightly appreciated the evidence on record. Therefore,

there are no perversity found in the appreciation of the

evidence made by the Tribunal. Further, submitted that

the statutory investigation as per Section-173 of Cr.P.C.

made by the Police - Investigating Officer is genuine one

and shown the respondent No.1 - claimant was the pillion

rider and there are no other contraray evidence to

disbelieve the charge-sheet material. Therefore, prays to

dismiss the appeal.

11. Heard the learned counsel for the parties and

perused the materials on record.

12. Considering the submissions made by the

learned counsel for the appellants, it is true that there is a

delay of 13 days in lodging the complaint. The accident in

question has occurred on 01.01.2008, but the complaint

was lodged on 13.01.2008. It is also pertinent to mention

here that on considering medical records, it is seen that

after the accident, respondent No.1-claimant was

unconscious and immediately he was shifted to the

hospital and taken to Bowring Hospital and thereafter to

Sagar Apollo Hospital. Therefore, there could not be

chances for prompt lodging of the complaint. Even though

the medical records disclosed that on 09.01.2008

respondent No.1-claimant was discharged from hospital,

but complaint lodged on 13.01.2008. Hence, there is only

four days delay from the date of discharge to lodging of

complaint. But this alone cannot be a ground to reject the

claim petition.

13. It is a paramount thing that soon after the

accident, endeavor has to be made to save the life of the

injured person by admitting him to the hospital, than

lodging a complaint to the Police. Under these

circumstance, considering the practical aspect, there might

have been some delay in lodging the complaint to the

Police and that cannot be ground for rejecting claim

petition.

14. In this regard, I place reliance on the judgment

of the Hon'ble Supreme Court in the case of Ravi vs.

Badrinarayan and Others reported in AIR 2011 SC

1226, wherein at para Nos.20 and 21, it was held that

mere delay in lodging the complaint, cannot be a ground

for rejection of a claim petition. Therefore, in the instant

case, even though the accident has occurred on

01.01.2008, the medical records show that the claimant

was admitted in Bowring hospital and in Sagar Apollo

Hospital as Inpatient for a period of nine days and was

discharged on 09.01.2008. But even after discharge from

the hospital, it is not practically possible to go to police

station immediately and lodge a complaint. Just because

there is a delay in lodging the complaint that cannot be a

ground to reject the claim petition.

15. The learned counsel for the appellant -

insurance company places reliance on Exhibit-P2, Wound

Certificate. Upon considering Exhibit-P2, Wound

Certificate, it is seen that respondent No.1 - claimant is

accompanied by one Rajendra Kumar. Hence, submitted

that respondent No.1 - claimant was the rider of the motor

cycle. Further, it is stated in Exhibit-P2, Wound Certificate

that there was a history of a road traffic accident on

01.01.2008, but there is no mentioning that the

respondent No.1-claimant was riding the motor cycle. Even

though in the discharge summary Exhibit-P3, there is

history of alleged fall from two wheeler, it means the

falling of the rider and the rider pillion. There is no specific

history mentioned that respondent No.1-claimant was

riding the motor cycle. Fall from the vehicle i.e., motor

cycle means both the rider and the pillion rider might have

fallen on the ground. Therefore, this document also will not

help the appellant - insurance company to state that the

respondent No.1-claimant was riding the motor cycle.

16. But upon considering the charge-sheet

material, Exhibit-P10, it is mentioned that Respondent

No.1-claimant was pillion rider and charge sheet was laid

down against rider of the motor cycle who was one

Basavaraj, S/o. Late Rajshekar. Therefore, the statutory

investigation made by the Police have also proved that the

respondent No.1-claimant was pillion rider motor cycle, but

not rider of the motor cycle. Contrary to the charge-sheet

material, the appellant-insurance company have not placed

any evidence to prove respondent No.1 was riding the

motor cycle. It is only on hypothesis basis, it is said that

the rider of the motor cycle does not sustain injuries.

Further, no one can say the exact manner how the

accident has occurred. In the accident, the rider might

have sustained minor injuries, but there are chances that

the pillion rider may sustain severe injuries. Therefore,

just because there is no evidence to show that the rider

has not sustained injuries it cannot be said that there is no

accident or pillion rider was riding the motor cycle.

Therefore, in this regard, I do not find any merit in the

submission made by the learned counsel for the appellant

- insurance company. In this regard, the Tribunal has

rightly appreciated the evidence on record.

17. Further, considering the submission made by

the learned counsel for the appellant that Exhibit-P9, IMV

Inspection Report has been prepared on 17.01.2008, i.e.,

after 17 days after the accident. Just because there is

some delay in examining the motor cycle and submitting

the MV report, that alone cannot be a ground to dismiss

the claim petition. Therefore, even in regard to non-

compliance of Section-134(c) and Section-158(6) of the

MV Act, the claim petition cannot be rejected. There may

be lapses in not reporting the factum of accident to the

insurance company as required under Section-134(c) and

Section-158(6), but it does not affect the claim petition

filed by the injured person.

18. Further, non-compliance of provision of

Section-39 of Cr.P.C., also cannot be a ground to reject

the claim petition. As per Section-39 of Cr.P.C.,

information of the incident is to be given to the Police

regarding cognizable offence. In the present case, the

Police after receipt of the information have started

investigation. Therefore, the complaint as per Exhibit-P11

was given and thereafter investigation was started.

Therefore, this submission also will not hold good for the

case of the appellant - insurance company, to set-aside

the judgment and award the Tribunal.

19. Therefore, the judgment and award passed by

the Tribunal is perfectly justified and legal one and hence

there is no good ground made out to interfere with the

judgment and award passed by the Tribunal. Therefore,

the appeal is devoid of merit and liable to be dismissed.

Accordingly, I proceed to pass the following:

ORDER

i. The appeal is dismissed.

ii. The judgment and award dated 02.05.2011,

passed in MVC No.7905/2008, on the file of MACT, at

Bangalore is hereby confirmed.

iv. The amount in deposit is ordered to be

transferred to the Tribunal forthwith, along with TCR and a

certified copy of this order.

iii. Draw award accordingly.

Sd/-

JUDGE

JJ