The Oriental Insurance Co Ltd vs Sri Chethan
2022 Latest Caselaw 12413 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF OCTOBER, 2022

                          BEFORE

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

                  M.F.A.NO.5267/2014 (MV)

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
TAPCMS COMPLEX, PB NO.68,
K.M.ROAD, CHIKMAGALUR TOWN,
REP BY ITS REGIONAL MANAGER,
THE ORIENTAL INSURANCE CO.LTD.,
REGIONAL OFFICE,
SUMANGALA COMPLEX 2ND FLOOR,
LAMINGTON ROAD,
HUBLI-580020.
                                              ...APPELLANT

            (BY SRI SHANKARA REDDY C, ADVOCATE)

AND:

1.     SRI CHETHAN,
       W/O B.VENKATESH,
       AGED ABOUT 32 YEARS,
       R/AT VENKATESHWARA NAGAR,
       BEHIND ANNAPOORNA THEATER,
       KADUR TOWN, KADUR TALUK,
       CHIKMAGALUR DISTRICT-577548.

2.     SRI ILIYAS,
       S/O ABDUL VAHEED,
       AGED ABOUT 42 YEARS,
       R/AT BIKE GARAGE,
       ADJACENT TO MAJESTIC MILITARY HOTEL,
       NH-206 ROAD, KADUR TOWN,
       CHIKMAGALUR DISTRICT-577548.
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3.   SRI MALLESH,
     S/O SHANKARAPPA,
     AGED ABOUT 29 YEARS,
     R/AT LAKKADI KOTE,
     KADUR TALUK,
     CHIKMAGALORE DISTRICT-577548.
                                               ...RESPONDENTS

          (BY SRI K. VENKATE GOWDA, ADVOCATE FOR R1,
                NOTICE TO R2 IS HELD SUFFICIENT
                  VIDE ORDER DATED 28.04.2017,
                          R3 IS SERVED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 19.05.2014 PASSED
IN MVC NO.45/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MACT, AT KADUR, CHIKMAGALUR DISTRICT, AWARDING
COMPENSATION OF RS.3,37,827/- WITH INTEREST @ 6% P.A
FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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


                       JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for respondent No.1.

2. This appeal is filed challenging the judgment and

award dated 19.05.2014, passed in M.V.C.No.45/2010, on the

file of the Senior Civil Judge and MACT, Kadur, Chikmagaluru,

('the Tribunal' for short) questioning the allowing of the claim

petition and the quantum of compensation.

3. The factual matrix of the case of the claimant before

the Tribunal is that on 07.10.2009 at about 8.00 p.m., he was

proceeding in the motorcycle, at that time, the offending vehicle

came and dashed against him. As a result, he sustained fracture

of both the bones and also other injuries and he was an inpatient

for a period of nine days in the hospital. It is also his claim that

on account of the fracture of both the bones and also the head

injury, he has suffered the permanent disability. In order to

substantiate his claim, the claimant examined himself as P.W.1

and got marked the documents at Exs.P.1 to 122 and also relied

upon the evidence of the doctor who has been examined through

the Court Commissioner and got marked the documents at

Exs.C.1 to 7. The respondent also examined one witness as

R.W.1 and the respondent disputes the very accident and relied

upon the documents at Exs.R.1 to 3. The Tribunal after

considering both oral and documentary evidence placed on

record, allowed the claim petition by granting compensation of

Rs.3,37,827/- with 6% interest. Hence, the present appeal is

filed by the Insurance Company questioning the allowing of the

claim petition and quantum of compensation.

4. The main contention of the learned counsel for the

appellant Insurance Company is that the document Ex.R.1 is

very clear that it is a case of fall from the motorcycle and the

accident occurred on 07.10.2009 and the complaint was given

on 23.10.2009 and there was a delay of 17 days in lodging the

complaint. The IMV report at Ex.P.6 is very clear that other

vehicle has not sustained any damages. In the discharge

summary at Ex.P.15, history is mentioned as fall from the bike

on 07.10.2009 at 7.30 p.m. and subsequently implicated the

vehicle. The learned counsel submits that the compensation

awarded, particularly an amount of Rs.80,000/- under the head

pain and suffering is on the higher side and hence it requires

interference of this Court.

5. Per contra, the learned counsel for respondent

No.1/claimant would contend that in Ex.R.1 relied upon by the

Insurance Company, it is specifically mentioned as RTA near

Chikkapattanagere gate at about 8.00 p.m. and the patient was

unconscious and some person took the injured and given the

history as fall from bike. But involvement of two vehicles in the

accident i.e., motorcycle is not in dispute. Except the document

Ex.R.1, no other material is placed before the Tribunal to come

to the conclusion that the vehicle has been falsely implicated.

The learned counsel submits that the admission is very clear

with regard to the contents of the document of Ex.R.1 and also

other documents and hence it does not require interference of

this Court. The quantum of compensation awarded is also very

meager and not on the higher side as contended by the

Insurance Company.

6. In reply to the arguments of the learned counsel for

respondent No.1, the learned counsel for the appellant would

submit that the claimant was working as SDC and he has

continued the job and no documents are placed whether he has

been removed from the service or not. Hence, the question of

awarding compensation under the head loss of future income

does not arise.

7. Having heard the respective learned counsel and also

on perusal of the material available on record, the points that

arise for the consideration of this Court are:

(i) Whether the Tribunal has committed an error in entertaining the claim petition as contended by the learned counsel for the appellant?

(ii) Whether the Tribunal has committed an error in awarding exorbitant compensation as contended?

(iii) What order?

Point No.(i):

8. Having heard the respective learned counsel and also

on perusal of the material on record, the Insurance Company

relied upon the document Ex.R.1. On perusal of Ex.R.1, it is

clear that the injured was taken to the hospital at 11.30 p.m.

and the accident occurred on 07.10.2009 at 8.00 p.m., wherein

history was given as fall from bike near Chikkapattanagere gate.

It is also important to note that history is mentioned that patient

was unconscious and no material is available as to who took the

injured to the hospital and also the injured was referred to the

major hospital on the very same day. No doubt, history is

mentioned as fall from the bike and the case of the claimant is

also involvement of two vehicles in the accident. The IMV report

does not disclose damage to both the vehicles. On perusal of

the IMV report Ex.P.6, front mudguard was broken and on the

offending vehicle no damages are found at that time of

inspection. It is important to note that inspection was

conducted on 07.11.2009, almost after lapse of one month.

Though the Insurance Company disputes the very accident, not

examined the Investigating Officer except examining the official

witness of the Insurance Company. When the accident is

disputed, the Insurance Company ought to have examined the

Investigating Officer with regard to the credibility of the charge-

sheet and the same has not been done. In the cross-

examination of R.W.1, he categorically admits that in Ex.R.1, it

is mentioned as RTA and time not known and the accident was

near Chikkapattanagere gate at about 8.00 p.m. It is also

mentioned that the claimant has sustained head injury and was

unconscious and referred for higher hospital and also admits that

Ex.P.5 wound certificate was given by Kadur Government

Hospital.

9. Having taken note of the admission given by R.W.1

and also taking note of the contents of Ex.R.1, the very

contention of the Insurance Company that vehicle has been

implicated cannot be accepted. Admittedly, the claimant was

unconscious when he was taken to the hospital and he was

referred to major hospital. Who gave the history has not been

proved by the Insurance Company with regard to aspect of fall

from bike and nothing is elicited from the cross-examination of

P.W.1. Apart from that, he was unconscious and subsequently

he regained the conscious. After discharge only he gave the

complaint and while giving the complaint, he has mentioned the

reason for delay in lodging the complaint. When he had lost the

conscious after the accident, there was a delay in lodging the

complaint cannot be a ground to accept the contention of the

Insurance Company. Hence, I do not find any force in the

contention of the Insurance Company that the vehicle was not

involved in the accident and that it is a case of implication.

Hence, I answer point No.(i) in the negative.

Point No.(ii):

10. Now coming to the aspect of quantum of

compensation is concerned, it is the contention of the Insurance

Company that exorbitant compensation has been awarded. An

amount of Rs.80,000/- is awarded towards pain and suffering

and he had suffered fracture of both the bones and also head

injury. When he has suffered head injury and he was an

inpatient for a period of nine days and also having taken note of

other heads, the compensation awarded under the head loss of

amenities is very less. The compensation awarded under the

head traveling/conveyance and attendant charges is only an

amount of Rs.5,500/- and medical expenses is based on the

documentary evidence. The loss of income for laid up period is

only Rs.9,000/- by taking the income of Rs.3,000/- per month

and no appeal is filed by the claimant. The loss of income in the

absence of any documentary evidence in a case of accident of

the year 2009 would be Rs.5000/-, but the amount taken by the

Tribunal is Rs.3,000/-, hence, I do not accept the contention of

the Insurance Company that exorbitant compensation has been

awarded. I find no ground on merits also in respect of quantum

of compensation is concerned. Hence, I answer point No.(ii) in

the negative.

Point No.(iii):

11. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.

(iii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

MD