The Branch Manager vs Sri. Raju
2022 Latest Caselaw 12417 Kant

                             1



       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.6948/2014 (MV)
                           C/W.
                M.F.A.NO.6949/2014 (MV-I)

IN M.F.A.NO.6948/2014 (MV):

BETWEEN:

THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
M.H. BORAIAH BUILDING, V.V. ROAD
MANDYA - 571 401
NOW REPRESENTED BY ITS
REGIONAL MANAGER
THE ORIENTAL INSRUANCE CO. LTD.,
REGIONAL OFFICE, NO.44/45
LEO SHOPPING COMPLEX
RESIDENCY ROAD, BENGALURU-25.               ... APPELLANT

 (BY SMT. HARINI SHIVANANDA, ADVOCATE [THROUGH VC])

AND:

1.     RAVIKUMAR
       AGED ABOUT 44 YEARS
       S/O. ANKAIAH
       R/O. UPPINAKERE
       MADDUR TALUK
       MANDYA DISTRICT - 571 428.

2.     SRI U.M.MAHESH BABU
       AGE: MAJOR,
       S/O. LATE MADAIAH
                             2



       UPPINAKERE
       MADDUR TALUK
       MANDYA DISTRICT-571 428.     ... RESPONDENTS

        (BY SRI P.MAHADEVASWAMY, ADVOCATE FOR R1;
                       R2 IS SERVED)

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.07.2014
PASSED IN MVC NO.163/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE & MACT, MADDUR, AWARDING COMPENSATION OF
RS.3,04,700/- WITH INTEREST @ 6% P.A FROM THE DATE OF
PETITION TILL REALIZATION.

IN M.F.A.NO.6949/2014 (MV-I):

BETWEEN:

THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
M.H. BORAIAH BUILDING, V.V. ROAD
MANDYA - 571 401
NOW REPRESENTED BY ITS
REGIONAL MANAGER
THE ORIENTAL INSRUANCE CO. LTD.,
REGIONAL OFFICE, NO.44/45
LEO SHOPPING COMPLEX
RESIDENCY ROAD,
BENGALURU-25.                             ... APPELLANT

 (BY SMT. HARINI SHIVANANDA, ADVOCATE [THROUGH VC])

AND:

1.     SRI RAJU
       S/O. BACHEGOWDA
       AGED ABOUT 49 YEARS
       R/O. BIDARAHOSAHALLI
       MANDYA TALUK
       MANDYA DISTRICT-571 428.
                                  3



2.    SRI U.M.MAHESH BABU
      AGE: MAJOR,
      S/O. LATE MADAIAH
      UPPINAKERE, MADDUR TALUK
      MANDYA DISTRICT-571 428.            ... RESPONDENTS

        (BY SRI P.MAHADEVASWAMY, ADVOCATE FOR R1
                      [THROUGH VC])

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.07.2014
PASSED IN MVC NO.164/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MACT, MADDUR, AWARDING COMPENSATION OF
RS.1,41,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.

     THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Heard the learned counsel for the appellant-Insurance

Company and learned counsel for the respondent No.1

2. The appeal in M.F.A.Nos.6948/2014 and 6949/2014

are filed challenging the judgment and award dated 10.07.2014

passed in M.V.C.Nos.163/2010 and 164/2010 respectively on the

file of the Senior Civil Judge & MACT, Maddur ('the Tribunal' for

short) allowing the claim petitions.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimants before

the Tribunal is that one is the pedestrian and another is the

pillion rider of the motorcycle belonging to the insured i.e.,

respondent No.1 and due to the negligence on the part of the

rider of the motorcycle, accident has occurred and the pillion

rider as well as the pedestrian have sustained injuries and took

treatment in the hospital.

5. The injured in M.V.C.No.163/2010 is the pillion rider,

who claims that he has sustained fracture of right clavicle and

head injury and thereafter, he took treatment as an inpatient

since, he has suffered haemotoma and injury on the right side of

the face and there were missing of teeth with respect to 11, 12

and 13 and he was advised for surgery for intuition and crown

replacement and he has spent Rs.30,000/- for surgery as well as

prosthetic rehabilitation and extraction of 12 (open method) was

done under local anesthesia and sutures were placed and the

petitioner was recalled after one week for suture removal and

crown replacement/prosthetic rehabilitation was done with

respect to 11, 21, 12, 13 and 14. On clinical examination, he

found functional/cosmetic disability to the extent of 30% to 40%

and the Tribunal has taken the disability at 12% and awarded

compensation of Rs.97,200/- on the head of loss of teeth and

mild head injury, an amount of Rs.50,000/- towards pain and

suffering and Rs.30,000/- towards loss of amenities in life.

Apart from that, awarded an amount of Rs.1,14,000/- towards

medical expenses and Rs.13,500/- towards loss of income during

laid up period. In all, the Tribunal awarded a compensation of

Rs.3,04,700/- with interest at 6% per annum.

6. In the claim petition in M.V.C.No.164/2010, the

Tribunal, having considered both oral and documentary evidence

placed on record, since he had sustained diffuse cerebral

oedema with sub-arachnid hemorrhage secondary to head

injury, soft tissue facial injuries and right brachial plexus injury-

upper trunk and considering the nature of injuries, awarded

compensation of Rs.40,000/- on the head of pain and suffering,

Rs.20,000/- towards loss of amenities and Rs.68,000/- towards

medical expenses, conveyance, attendant, food and nourishment

and other incidental charges and also awarded Rs.13,500/-

towards loss of income during laid up period. In all, awarded

compensation of Rs.1,41,500/- with interest at 6% per annum.

7. The Insurance Company examined four witnesses in

support of their claim, who claim that pillion rider himself was

riding the motorcycle and the injured was driving the motorcycle

and to that effect, the police have recorded the statement of the

injured and filed 'B' report and 'B' report is also accepted and the

same has not been challenged and fastening of liability on the

Insurance Company is erroneous and hence, it requires

interference.

8. Per contra, learned counsel appearing for the

respondent No.1 would submit that, immediately after the

accident, both of them were taken to the hospital and one

among them was pedestrian and another was pillion rider and

both of them have sustained grievous injuries and also lost teeth

and sustained head injury and compensation awarded is very

meager and the very contention of the Insurance Company is

that pillion rider was riding the motorcycle and to substantiate

the same, no material before the Court, except the document

Ex.R2, but it does not contain even the signature of injured. The

claimant, who claims himself was riding the motorcycle in terms

of Ex.R2 and hence, he is not entitled for compensation and all

of them were proceeding in the very same motorcycle i.e., the

injured, who was driving the motorcycle and other pillion rider,

who made the claim twisted the facts of the case, in order to

make wrongful gain. Hence, no case to interfere with the

findings of the Tribunal.

9. Having heard the respective counsel and also on

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

arise for consideration of this Court are:

(i) Whether the Tribunal committed an error in allowing claim petition and fastening the liability on the insurer?

      (ii)    Whether the Tribunal has committed an error
              in   awarding      exorbitant    compensation     as
              contended       by      the     appellant-Insurance
              Company in both the appeals and whether it
              requires interference of this Court?
      (iii)   What order?


Point No.(i)

10. Having heard the respective counsel and also on

perusal of the material available on record, it is the contention of

the learned counsel appearing for the appellant-Insurance

Company that, admittedly, Exs.R1 and R2 are the 'B' reports

filed by the police and the same has not been challenged and

also the statement of the insured was recorded in terms of Ex.R5

and the wound certificate is also clear that he had fallen from

motorcycle and no details with regard to the fact that on hitting

the pedestrian, accident has occurred. In order to substantiate

the contention of the Insurance Company, no doubt, the

Insurance Company examined R.Ws.1 to 4. R.W.1 is the

Assistant Manager of Insurance Company and he is not an eye

witness and he has given the evidence based on the

documentary evidence. In the cross-examination, he admits

that the Insurance Company not appointed any Investigating

Officer and investigated the matter but, he claims that

Investigating Officer met and enquired the owner of the vehicle.

11. The other witness is R.W.3, who is the PSI, who filed

the 'B' report and he says that he recorded the statement of the

injured and filed 'B' report and he was subjected to cross-

examination. But, in the cross-examination, he says that he

cannot tell, whether complaint was given to the police after the

accident or not and admits that, wound certificate was collected

in terms of Ex.P4 and also admits that in the history in Ex.P4, it

is mentioned that injured were taken to hospital in the

ambulance. He also admits that one Ravikumar has given the

complaint and also admits that in terms of Ex.P3, it is mentioned

in the report as Suri @ Suresh and he says that PSI has

recorded the statement of the injured and also admits that when

the statement is recorded, they used to take the signature of the

person, who make the statement and also admits that in Ex.R5,

the signature of witness has not been obtained and he cannot

tell on what date they have given the complaint.

12. The other witness is R.W.4, PSI who deposed that,

he has recorded the statement of the injured and thereafter

entrusted the further investigation to PSI-Venkate Gowda and in

the cross-examination, he admits that injured came to the police

station and he recorded the statement and also recorded the

statement of Raju and Ravi.

13. The other witness is Head Constable-R.W.5 and he

says that he has recorded the statement of witness. But, in the

cross-examination, he admits that he cannot tell whether

intimation was given to the police by the hospital or not and also

admits that after receipt of complaint by the complainant, he has

registered the case but, he has not visited the hospital and also

admits that he has drawn the sketch of the spot. P.W.1, who is

the injured in his evidence says that rider of the motorcycle went

and hit the pedestrian and he jumped from the vehicle and he

has sustained injury. In the cross-examination, suggestion was

made that he was riding the motorcycle and he was not having

any driving license and hence, he is falsely deposing that he was

not driving the motorcycle and the said suggestion was denied.

14. The other witness is P.W.3, who claims that he is an

eye witness to the accident. He was cross-examined. He is also

a complainant and in the cross-examination, suggestion was

made that, further statement was given before the police and

the same was denied and he also says that he has not received

any notice from the Court when 'B' report was filed.

15. The other witness is R.W.2, who is the insured gives

the evidence in the same line of the case of the claimants. He

was also subjected to cross-examination. In the cross-

examination, document of Ex.R5 was confronted and he admits

the same.

16. Having considered both oral and documentary

evidence placed on record, the main contention of the Insurance

Company is that the claimant, who claims that he was a pillion

and rider was driving the motorcycle and in order to substantiate

the contention, suggestion was made to P.W.1 and P.W.1

categorically denies the said suggestion and mainly relies upon

the evidence of other witness i.e., R.W.1, who is not an eye

witness and R.Ws.3, 4 and 5 are the police witnesses and no

doubt, Ex.R5 is the statement of R.W.2 and no doubt, R.W.2 in

the cross-examination admits that he gave the statement, but

on perusal of document Ex.R5, it does not contains the signature

of R.W.2 and also in the cross-examination of R.Ws.3 to 5, they

have admitted that signature of R.W.2 was not taken and

normally, they used to take the signature of the witness. On

perusal of Ex.R5, no such signature of R.W.2 is found and mere

stray admission of R.W.2 that he gave the statement before the

police cannot be considered, unless the same is confronted.

17. It is also important to note that Ex.R5 is recorded

almost after one year of the accident and based on Ex.R5 only,

police have filed 'B' report and the witnesses, who have been

examined as R.Ws.3 to 5 categorically admitted that no

document is placed before the Court for having given notice to

the complainant, before filing 'B' report. No doubt, Exs.R2 and

R3 discloses that 'B' report was filed, the counsel submits that 'B'

report was accepted. In order to accept the contention that

before filing of 'B' report notice was given, nothing is placed on

record and mere examination of R.Ws.3 to 5, who have filed 'B'

report after the investigation that too, based on the alleged

further statement is not enough and also only on the statement

of the insured R.W.2 which does not contain any signature, this

Court cannot come to a conclusion that the claimant was riding

the motorcycle.

18. It is also the contention of the learned counsel for

the Insurance Company that there were three occupants in the

motorcycle but, the complainant in the complaint, who has been

examined as P.W.3 categorically deposed that he witnessed the

accident and the rider of the motorcycle hit the pedestrian and

when the accident occurred, the other claimant was the pillion

rider fell down from the motorcycle and had sustained injuries.

When such being the case, mere taking of defence is not enough

and the same has to be proved and none of the eye witnesses

have been examined by the Insurance Company to prove the

defence. When such being the case, I do not find any force in

the contention of the learned counsel for the appellant that

accident was on account of the claimant, who was allegedly

riding the motorcycle. In the absence of cogent evidence, this

Court cannot come to an other conclusion. Under the

circumstance, I answer point No.(i) as 'negative'.

Point No.(ii)

19. In the claim petition in M.V.C.No.163/2010, wound

certificate discloses that the claimant had sustained moderate

head injury and also fracture of right clavicle and other injuries

and the Doctor has opined that injury Nos.2, 4 and 7 are

grievous in nature and injury Nos.1, 3, 5 and 6 are simple in

nature and the claimant, in order to substantiate his case,

examined the Doctor, who is a Dental Surgeon and he says that

he found haemotoma and injuries on the right side of the face

and there were missing of teeth with respect to 11, 12 and 13

and he was also subjected for replacement and spent an amount

of Rs.30,000/- and he also says that the claimant was suffering

from functional/cosmetic disability to the extent of 30% to 40%

and the Tribunal accepted the same and assessed the disability

at 12% and with regard to the head injury is concerned, no

other Doctor/Expert has been examined and he had suffered

only fracture of right clavicle, head injury, facial injury and loss

of teeth and the question of disability in respect of loss of teeth

does not arise as observed by the Tribunal and in the absence of

any documentary evidence on record regarding the disability on

account of the head injury, the question of considering the

disability does not arise and the Tribunal committed an error in

assessing the disability and awarding Rs.97,200/- under the

head loss of teeth mild head injury. However, this Court has to

take note of the nature of injury and missing of teeth and the

claimant was also subjected to crown replacement i.e.,

prosthetic rehabilitation was done in respect of 11, 21, 12, 13

and 14 and clinical examination report also discloses the same.

When such being the case, when the injured had suffered

missing of teeth 3 in number and also suffered facial injury and

haemotoma, the Tribunal awarded only Rs.50,000/- towards

pain and suffering and the same has to be enhanced to

Rs.60,000/. The Tribunal also awarded Rs.30,000/- on the head

of loss of amenities and when he is aged about 40 years, it is

appropriate to award Rs.50,000/- since, he had lost 3 teeth and

suffered facial injury. The Tribunal also awarded an amount

Rs.1,14,000/- towards medical expenses and the same is based

on the documentary evidence and also awarded an amount of

Rs.13,500/- towards loss of income during laid up period

considering the income of Rs.4,500/- per month and it was the

accident of the year 2009 and notional income would be

Rs.5,000/-. Having considered the nature of injury, it is

appropriate to take 4 months as the laid up period taking the

income at Rs.5,000/- per month and award Rs.20,000/- as

against Rs.13,500/-. The Tribunal has not awarded any

compensation towards attendant charges, food and nourishment

and committed error in including the conveyance, attendant,

food and nourishment charges while awarding medical expenses

though the medical bills itself are to the tune of Rs.1,14,040/-

and no additional compensation is awarded. Hence, it is

appropriate to award Rs.20,000/- towards attendant charges,

food and nourishment. In view of reassessing the compensation,

in all, the claimant is entitled for compensation of Rs.2,64,000/-

as against Rs.3,04,700/-.

20. In M.V.C.No.164/2010, the claimant had sustained

head injury and the Doctor has not been examined. Hence, the

Tribunal awarded compensation of Rs.40,000/- towards pain and

suffering, Rs.20,000/- towards of loss of amenities in life,

Rs.68,000/- towards medical expenses bills and Rs.13,500/-

towards loss of income during laid up period taking the income

at Rs.4,500/- per month. Hence, in all, awarded compensation

of Rs.1,41,500/- with interest at 6% per annum. Therefore, I do

not find any merit in the appeal to reduce the compensation as

contended by the learned counsel appearing for the Insurance

Company.

Point No.(iii)

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

following:

ORDER

(i) The appeal in M.F.A.No.6948/2014 is allowed and the judgment and award of the Tribunal dated 10.07.2014 passed in M.V.C.No.163/2010 is modified reducing the compensation to Rs.2,64,000/- as against Rs.3,04,700/- awarded by the Tribunal with interest at 6% per annum from the date of petition till deposit.

     (ii)    The    appeal   in    M.F.A.No.6949/2014        is
             dismissed.

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

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

Sd/-

JUDGE

ST