Ajay Kumar T vs M/S. Supreme Infrastructure ...
2022 Latest Caselaw 7758 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 31ST DAY OF MAY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

             M.F.A.NO.9548/2013 (MV-I)

BETWEEN:

AJAY KUMAR T.,
S/O THIPPERUDRAPPA,
AGED ABOUT 22 YEARS,
R/O MALLIKARJUNA NILAYA,
KAWADIGARAHATTY,
M.K.HATTY,
CHITRADURGA TALUK-577501.
                                         ... APPELLANT
(BY SRI. SIDDAPPA B.M. ADVOCATE)

AND:

1.     M/S SUPREME INFRASTRUCTURE
       INDIA, OWNER OF THIPPER LORRY,
       BEARING REGISTRATION NO.KA-16-A-6863,
       SHARAMA BUNGALOW,
       BEHIND LATE CASTLE BUILDING,
       NEAR CHITRARATH STUDIO,
       PAWAL MUMBAI,
       MAHARASHTRA-76.

2.   THE BRANCH MANAGER,
     RELIANCE GENERAL INSURANCE CO.LTD.,
     BRANCH OFFICE,
     MAGANURU BASAPPA BUILDING,
     CHITRADURGA-577501.
                                  ... RESPONDENTS
(BY SRI H.S. LINGARAJ, ADVOCATE FOR R2,
R1-SERVED)
                                 2


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT     AGAINST         THE     JUDGMENT      AND     AWARD
DATED:12.08.2013 PASSED IN MVC NO.128/2011 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
ADDITIONAL MACT, CHITRADURGA,              DISMISSING THE
CLAIM PETITION FOR COMPENSATION AND ETC.,



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

                        JUDGMENT

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

Motor Vehicles Act 1988 (hereinafter referred to as 'the

Tribunal' for brevity) by the appellant-claimant,

challenging the judgment and award dated 12.08.2013,

passed in MVC No.128/2011, on the file of IInd Additional

MACT-VI, Senior Civil Judge, and Additional MACT-V,

Chitradurga, (hereinafter referred to as 'The Tribunal' for

brevity) seeking enhancement.

Brief facts:

2. On 25.09.2010 at about 4.00 p.m., when the

claimant along with his friend, were going in their

motorcycle bearing registration No.KA-16-R-4324, from

Marikanive, towards Chitradurga, on NH-4 Road, on the

left side of the road, at that time, the driver of the lorry

bearing registration No.KA-16-A-6863, drove the same in a

rash and negligent manner with a high speed and suddenly

applied brake. As a result of which, the claimant lost

control over his bike and dashed against the said lorry.

Due to the accident, the claimant suffered severe injuries

and immediately he was shifted to the District Government

Hospital, Chitradurga. After first aid treatment, as per the

advice of the Doctors, he was further shifted to SSIMS

Hospital, Davanagere. Wherein he took treatment as an

inpatient for about one month and he has incurred

Rs.2,00,000/- towards medical expenses.

3. Hence, a claim petition was filed by the appellant-

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,

dismissed the petition with cost.

[

4. Heard arguments of the learned counsel for the

appellant-claimant and the learned counsel for respondent

No.2 - insurance company and perused the materials on

record.

5. The learned counsel for the appellant-claimant

submitted that the Tribunal has erroneously dismissed the

claim petition. The reasoning assigned by the Tribunal are

incorrect. Further, submitted that even in the medical

records also, there is a mention that there was a 'Road

Traffic Accident' occurred and the claimant had fallen from

bike. Therefore, submitted that the accident had occurred

as has been stated in the complaint. Just because there is

a delay of eight days in lodging the complaint, that cannot

be made a ground to reject the claim petition. Therefore,

submitted without properly appreciating the material

records, the Tribunal has erroneously dismissed the claim

petition. Therefore, prays for allowing the claim petition.

6. On the other hand, the learned counsel

appearing for the second respondent - insurance company

submitted that particularly the tipper lorry in question was

not involved in the accident. Even though there is a fall

from bike, but it is due to 'self-fall' from the bike.

Therefore, the accident has not taken place as pointed out

by the claimant and therefore, the tipper lorry was falsely

implicated, just to claim compensation from the insurance

company. Further, submitted that there is a delay of eight

days in lodging the complaint. Further, submitted that RW-

2 is a Doctor who got admitted the claimant to the hospital

and he had noted down in Exhibit-R2, MLC Register.

According, to the narration given by the appellant while

admitting the claimant to the hospital, the evidence of RW-

2 is considered and it is proved that the appellant-claimant

himself came to the hospital and got admitted and he had

narrated the incident as he had fallen from the bike.

Therefore, from the evidence of RW-2 it is proved that the

tipper lorry was not involved in the accident. Therefore,

prays for dismissal of the appeal as the judgment passed

by the Tribunal is correct.

7. In the present case, the Tribunal has dismissed

the claim petition on the ground that in the medical

records, the history of injuries is stated due to 'fall from

bike'. Moreover, the Tribunal relied on the evidence of RW-

2 that in the medical records i.e., MLC Register it is not

mentioned that he was hit by a lorry. Further, the Tribunal

opined that the RW-2 had stated that the appellant had

himself got admitted to the Hospital. But in the complaint,

the appellant had stated that he was brought to the

Hospital by his friends after the accident. Therefore, the

Tribunal believed the version of RW-2 by referring the MLC

Register, Exhibit-R2, and came to the conclusion that the

tipper lorry was not involved in the accident and the

claimant had fallen as self from the bike. Therefore, on this

ground, rejected the claim petition.

8. It is proved that in the Wound Certificate,

Exhibit-P6, and MLC extract, Exhibit-R1, it is mentioned

that there was a 'fall from bike'. The word 'fall from bike'

has many connotations. Fallen from bike means 'self-

falling' from the bike or the bike is hit by any other vehicle

or hitting the bike from behind, when he had applied

sudden brake or lorry going ahead had been driven in a

rash and negligent manner. Therefore, fall from the bike

always does not mean that it is an self-fall from the bike.

But the Tribunal has mainly swayed away by the MLC

Extract, that there is fall from the bike and disbelieved the

claim petition by opining that the tipper lorry was not

involved in the instant case.

9. It cannot always be expected from the Hospital

records to write full version of the accident, in verbatim to

mention in the medical records. The foremost thing for a

Doctor, when a patient is admitted to the hospital is to

give treatment, as early as possible, then to take history of

the accident. While so taking the history of the accident,

all the minute details are not possible to write on the

medical record. Therefore, upon considering Wound

Certificate, Exhibit-P6, and MLC extract, Exhibit-R1, it is

clearly mentioned that there is a road traffic accident

occurred. Then the next question is what is the manner of

the fall from the bike, which means self-fall from the bike

or due to some other vehicle.

10. In order to ascertain this fact, it is necessary to

appreciate the police documents. It is true that there is

eight days delay in lodging the complaint, but the delay in

lodging the complaint always cannot be doubted.

Regarding the fact of delay in lodging complaint belatedly,

there may be various reasons in lodging the complaint

belatedly. As held by the Hon'ble Apex Court in the

judgment in the case of Ravi vs. Badrinarayan And

Others, reported in 2011 AIR SCW 1530, wherein it was

held by the Hon'ble Apex Court that delay in lodging

complaint cannot be a ground for rejection of a claim

petition. In view of the principle laid down by the Hon'ble

Apex Court in the aforesaid judgment, just because there

is a delay of eight days in lodging the complaint, it cannot

be said that tipper lorry was not involved in the accident.

The statutory investigation by the Police and the filing of

the charge-sheet has its own responsibility. Thus, it cannot

be doubted without any other concrete reason based on

the evidences. In the charge-sheet, which is the result of

the investigation it is stated that the tipper lorry driver had

hit the lorry and caused the accident, to prove this as

incorrect, there is no other cogent evidence by the second

respondent - insurance company. The respondent -

insurance company is mainly relying on the evidence on

MLC extract, wound certificate and oral evidence of the

RW-2, Doctor. But it is pertaining to the incident herein,

that there is a mention in the MLC extract and the Wound

Certificate that there is a Road Traffic Accident and 'fall

from the bike'. As discussed above, the next thing is to be

considered what is the meaning of fall from the bike.

Therefore under these circumstances, the appeal records

can be appreciated as per the statutory investigation by

police it is revealed that a tipper lorry was involved, which

caused the accident.

11. Considering the observations made by the

Tribunal in respect of the evidence of RW-2, Doctor who

was on the duty at the time of admitting the appellant in

the hospital. RW-2 Doctor has stated that the appellant

had alone gone to the hospital and himself got admitted in

the hospital and accordingly he has stated that he has

written in the medical records that just because there is

contradiction between the statements of RW-2 in saying

that the appellant was conscious and had alone come to

the hospital. The said contradiction cannot be a ground to

hold that the accident has not occurred as narrated by the

appellant. Furthermore, the RW-2 Doctor has given

evidence before the Court after a period of three years

from the date of the accident. It is highly doubtful whether

the Doctors can remember all the minute information at

the time of giving evidence to the court. Therefore, under

these circumstances, when the oral and documentary

evidence are weighed and sifted, it is proved that there

was a road traffic accident occurred involving the tipper

lorry and the bike. Therefore, in this regard, the

appreciation of evidence and the findings made by the

Tribunal are not proper and also incorrect. Therefore

reasonings assigned by the Tribunal are found to be

perverse. Therefore, the judgment and award passed by

the Tribunal is liable to be set-aside.

12. The Doctor PW-2 had given evidence that the

appellant had suffered the following injuries:

        i.     Loss of upper incisor 6 teeth,
        ii.    Lacerated wound over cheek,
        iii.   Lacerated injury over lower lip,
        iv.    Lacerated injury over left fore arm
               And other injuries all over the body.

Therefore, it is proved that the appellant had

suffered injury to the face and lost his teeth. Therefore

considering the above stated injuries sustained in the said

accident, it is just and proper to award compensation of

Rs.35,000/- towards injuries Pain And Suffering.

Accordingly, awarded.

13. Further, this Court has perused all the medical

bills and receipts produced. The total medical expenses

and hospitalization charges paid by the appellant comes to

Rs.65,000/-, which is as per the records. Therefore, a sum

of Rs.65,000/- is awarded towards 'Medical Expenses

and Hospitalization Charges' as discussed.

14. Further, the Doctor RW-2 had stated that the

petitioner had suffered 40% disability. But this cannot be

taken into consideration as it does not affect the earning

capacity of the appellant. There is no evidence in what way

the claimant had suffered 'loss of earning capacity due to

the said injuries'. The disability stated is in respect of face

and teeth only. At the time of the accident, the appellant

was a student. Therefore, there is no compensation can be

awarded under the head 'loss of future earning capacity',

but the compensation can be awarded under the head

'loss of amenities'. The appellant had suffered injuries to

head and lost several teeth. Therefore it is very

inconvenience caused and loss of enjoyment in his life.

Therefore, a compensation of Rs.1,00,000/- is awarded

towards 'loss of amenities and enjoyment in life'.

15. Further a compensation of Rs.20,000/- is

awarded for towards 'transportation, conveyance,

attendant charges, follow up treatment, etc'.

16. Hence, the appellant is entitled for a total

enhanced compensation, under various heads as follows:

Pain, Injuries And Suffering : Rs. 35,000/-

Medical Expenses                           :   Rs.       65,000/-
Loss of Amenities And Enjoyment in :           Rs.     1,00,000/-
Life

Transportation, conveyance,                :   Rs.       20,000/-
attendant charges, follow up
treatment, etc'
                                  TOTAL :      Rs. 2,20,000/-

17. Therefore, the appellant is awarded a total

compensation of Rs.2,20,000/-, along with interest at

6% per annum from the date of filing of the petition till

deposit.

18. Accordingly, I pass the following:

ORDER

i. The appeal is allowed in part.

     ii.    The   judgment     and    award   passed    by   the

            Tribunal     dated       12.08.2013,   in        MVC

No.128/2011, on the file of IInd Additional

MACT-VI, Senior Civil Judge, and Additional

MACT-V, Chitradurga, is hereby set-aside.

iii. The appellant is entitled for a compensation of

Rs.2,20,000/- (Rupees Two Lakh Twenty

Thousand Only), along with interest at 6%

per annum from the date of filing of the

petition till deposit.

iv. Registry is directed to return the Trial Court

Records to the Tribunal, along with certified

copy of the order passed by this Court

forthwith without any delay.

v. Draw award accordingly.

Sd/-

JUDGE JJ