M/S Icici Lombard General ... vs Kiran @ Kirankumar
2022 Latest Caselaw 12463 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF OCTOBER, 2022

                         BEFORE

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

                 M.F.A.NO.2459/2017 (MV-I)

BETWEEN:

M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD.,
REGIONAL OFFICE, NO.86, 2ND FLOOR
S.V.R. COMPLEX, HOSUR MAIN ROAD,
MADIVALA, BENGALURU.
NOW REP. BY ITS MANAGER LEGAL
M/S. ICICI LOMBARD GIC LTD.,
REGIONAL OFFICE
THE ESTATE, 9TH FLOOR
DICKENSON ROAD, M.G.ROAD
BENGALURU-560 042.                       ... APPELLANT

          (BY SRI B.C.SHIVANNE GOWDA, ADVOCATE)

AND:

1.     KIRAN @ KIRANKUMAR
       S/O LATE NAGARAJU
       AGED ABOUT 22 YEARS
       R/O MUDDINAPALYA
       MAGADI MAIN ROAD
       BENGALURU-560 091

2.     NARASE GOWDA
       S/O NARASAIAH
       MAJOR, R/O CHOLANAYAKANAHALLI
       MAGADI TALUK
       RAMANAGARA DISTRICT.              ... RESPONDENTS

         (BY SRI R. SHASHIDHAR, ADVOCATE FOR R1;
                       R2 IS SERVED)
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     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.11.2016
PASSED IN MVC NO.498/2013 ON THE FILE OF THE VII
ADDITIONAL JUDGE AND XXXII ACMM, COURT OF SMALL
CAUSES,    BENGALURU,     AWARDING    COMPENSATION     OF
RS.3,50,200/- WITH INTEREST AT 8% P.A., FROM THE DATE OF
PETITION TILL ITS REALISATION.

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

                        JUDGMENT

Heard the learned counsel appearing for the appellant-

Insurance Company and the learned counsel appearing for

respondent No.1-claimant.

2. This appeal is filed challenging the judgment and

award dated 11.11.2016 passed in M.V.C.No.498/2013 on the

file of VII Additional Judge & XXXII ACMM and Court of Small

Causes, Bengaluru (SCCH-3) ['the Tribunal' for short].

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 claimant before

the Tribunal is that on 17.11.2012 at about 3:45 p.m, the

injured was traveling as a passenger in Bhavani Bus bearing

registration No.KA-42-2706, from Bengaluru to Magadi on

Magadi Bengaluru main road near Thagachaguppe, at that time,

the driver of the said bus drove the same in a high speed, rash

and negligent manner and dashed against the Bus bearing

registration No.KA-57-F-250. Due to the impact, he has

sustained severe injuries. Immediately, he was shifted to

Victoria Hospital and thereafter he was referred to the Lakshmi

Hospital, Sunkadakatte, Bengaluru. He underwent wound

debridgement as well as skin grafting. Due to the accidental

injuries, he has suffered permanent disability and working as a

data entry operator and earning Rs.10,000/- per month.

5. In pursuance of the claim petition, notice was issued

to respondent No.1, he failed to appear before the Court and

placed ex-parte and respondent No.2 is the Insurance Company

resisted the claim petition.

6. The claimant in order to substantiate his case, he

examined himself as P.W.1 and examined the Doctor as P.W.2

and also examined the another witness as P.W.3 and got marked

the documents as Exs.P1 to P17. On the other hand, the

respondent - Insurance Company has examined two witnesses

viz., R.W.1-officer of the Insurance Company and R.W.2, who is

an Investigating Officer and got marked the documents as Ex.R1

and Ex.R2.

7. The Tribunal after considering both oral and

documentary evidence placed on record, allowed the claim

petition granting compensation of Rs.3,50,200/- with interest at

8% p.a. from the date of petition till its realization. Hence, the

present appeal is filed by the Insurance Company.

8. The main contention of the learned counsel

appearing for the appellant - Insurance Company is that the

injured immediately after the accident was taken to the

Government Hospital at Magadi but no document has been

placed before the Court. Later he was admitted to the Victoria

Hospital at 3:40 p.m, on 17.11.2012. Though it is mentioned as

RTA, he claims that he was a passenger in Bhavani Bus, no

document has been placed before the Court that he was

traveling in the Bus. The Investigating Officer admits that five

persons were sustained simple injuries. But on the other hand as

per the Wound Certificate that the petitioner does indicate that

he was sustained deep laceration over the right shoulder on

lateral aspect, measuring 3 x 2 cms. X-ray of right shoulder

shows fracture of head of humerous. When two buses were

colluded with each other, all of a sudden in Lakshmi Hospital, the

bus number was mentioned. In the Victoria hospital, the bus

number was not mentioned.

9. The learned counsel appearing for the appellant -

Insurance Company would vehemently contend that the medical

history was furnished by the petitioner ought to have been

considered by the Tribunal and the same has not been

considered. The very sustaining of the injury in the said accident

is doubtful and the same has not been considered by the

Tribunal. The learned counsel also would submit that the

accident was occurred at 3:35 p.m, and the injured was

admitted in the Victoria Hospital at 4:30 p.m. Hence, it is very

clear that it is a case of concoction.

10. Per contra, the learned counsel appearing for the

respondent - claimant would submit that immediately after the

accident the injured was taken to the Victoria Hospital, wherein,

he has given the history. In the history, it is mentioned as RTA

and involvement of two buses. Thereafter, he was admitted in

Lakshmi Hospital, wherein also the history was given. The

documents, which have been placed before the Court clearly

disclose that the involvement of two buses in the accident and

the injuries sustained by the claimant. The Tribunal considered

the material on record and came to the right conclusion that the

claimant sustained the injuries in the accident.

11. Having heard the arguments of the respective

counsel and on perusal of the grounds urged in the appeal and

the materials available on record, the points that would arise for

consideration of this Court are:

(i) Whether the Tribunal has committed an error in entertaining the claim petition by disbelieving the contention of the Insurance Company and whether it requires an interference of this Court?

(ii) What order?

Point No.(i):

12. Having heard the respective counsel and on perusal

of the material available on record, the injured, who has been

examined as P.W.1. He reiterates that he was traveling from

Bengaluru to Magadi. When the bus reached near

Thagachaguppe, an accident was occurred and he rushed to the

Government Hospital, Magadi for the first aid and he was

referred to Victoria Hospital and Panacea Hospital. Thereafter he

was shifted to Sri Lakshmi Hospital, Sunkadakatte, Bengaluru.

This petitioner was cross-examined. In the cross-examination, it

is elicited that in order to show that he was traveled in the bus

on 17.11.2012, he has not produced any document. It is

suggested that he was not travelled in the said bus and the

same was denied. However, he says that the width of the road

is 40 feet and there was no any road median. He was sitting

behind the driver of the bus, in order to show that he has been

called as Kiran @ Kiran Kumar, no document has been produced.

It is suggested that his name has not been shown in the charge-

sheet that he was injured. Hence, he has not traveled in the bus

and the said suggestion was denied and he is not having any

difficulty to produce the charge-sheet and also he admits that in

any of the documents which he has produced before the Court

does not disclose his name. The claimant also examined the

Doctor as P.W.2. P.W.2 says that the injured admitted to the

hospital on 18.11.2012 and seen by his team and found the

injuries and conducted the surgery. He assessed the disability.

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

examination, he says that in Ex.P11, his name found. The

document-MLC extract and attested copy of intimation to the

Police got marked as Exs.P16 and P17. In the cross-

examination, he admits that he is not aware as to who has

written the contents in the case sheet - Ex.P15 and also he does

not know the contents of Ex.P16 - MLC extract.

13. On the other hand, the respondents have examined

one witness as R.W.1, who is a legal retainer. He was subjected

to cross-examination. In the cross-examination, he admits that

they used to appoint their private investigator to investigate the

case and they are not produced any investigation report. He

admits that in the discharge summary issued by Lakshmi

Hospital, Bengaluru, at Ex.P5, it is stated that the alleged history

of RTA, bus No.KA-47-2706 hit by another bus No.KA-57-F-250

and also admits that in MLC register, the said aspect is

mentioned as the history of injury and not filed the complaint

challenging the police records. He admits that five persons were

injured in the said accident and also admits that the bus driver

who gave the complaint is Kiran Kumar and the petitioner name

is also Kiran Kumar. Further, he admits the records produced by

the petitioner, wherein, it is stated that he sustained injuries in

the accident on the date of the accident when he was traveling in

Bhavani Bus.

14. The other witness is an Investigating Officer. In his

evidence, he says that he was working as PSI., he investigated

the matter and filed the charge-sheet. One Kiran Kumar K.N.

s/o Narasimhaiah has lodged a complaint. The BMTC., bus driver

has lodged a complaint in the case. Two buses are involved in

the accident. Persons, who sustained injuries in the accident are

made as witnesses in the crime case and also admits that the

petitioner was not made as witness in the charge-sheet. He also

admits that the petitioner in this case i.e., Kiran @ Kiran Kumar

s/o. Late Nagaraju, aged about 18 years has not sustained any

injuries. There were five persons sustained simple injuries,

among whom one Wound Certificate he has received by Magadi

Hospital, but Police have not collected the injury certificate of

others.

15. In the further cross-examination, he admits that

when two vehicles are involved in the accident, the inspector will

inspect both the vehicles during IMV inspection and also admits

that it is their duty to collect the IMV report and he has

collected the IMV report. He admits that only one intimation

regarding the injured Munna is received, but in the complaint,

there is no mention of said Munna who sustained the injuries.

He admits though he has stated that five persons have sustained

injuries, he has not enquired five persons and blindly he has filed

the charge-sheet and the said suggestion was denied. The

witness volunteers that other four persons have taken first aid in

Magadi Government Hospital, he has not enquired as to whether

the said four persons have taken treatment in Magadi Hospital.

16. Having considered both oral and documentary

evidence placed on record, it is clear that the accident was

occurred on 17.11.2012 at 15:45 hours. The FIR was received

on 17.11.2012. In the FIR, involvement of two vehicles in the

accident is mentioned by mentioning both the vehicle numbers.

Hence, it is clear that the accident was occurred between two

vehicles and the same is not in dispute.

17. The very contention of the Insurance Company is

that this petitioner was not traveled in the said Bhavani Bus and

the immediate records of Magadi Hospital, wherein, he took

first aid, is not placed before the Court and the injured was

shifted to the Victoria Hospital, wherein, it is mentioned the

history as RTA and on the same day, he was shifted to Victoria

Hospital and on the next day, he was shifted to Lakshmi Multi-

Speciality Hospital and Medico Legal Register is marked as

Ex.P4, wherein, the vehicle number given on the next day itself.

He was an inpatient for a period of three days at Lakshmi

Hospital, in terms of Ex.P5. Having taken note of admission of

P.W.1 that he has not produced any document to show that he

was traveled in the said Bus but the fact that immediately he

was taken to the Victoria Hospital, wherein, the history is

mentioned as RTA and on the very next day in the Lakshmi

Hospital, history is also given with regard to the involvement of

the vehicle.

18. The learned counsel appearing for the respondent-

claimant brought to the notice of this Court that the document

Ex.P15-case sheet of Victoria Hospital, wherein, it is

categorically mentioned that the accident was occurred and the

history was given as RTA on 17.11.2012, wherein, the timings is

mentioned as 4:00 p.m. The Victoria Hospital intimation was

given and the Assistant Sub Inspector of Police, Victoria Hospital

Police Station received the said intimation on 17.11.2012 itself.

Merely because the Investigating Officer has not recorded the

statement of witness, the same cannot be a ground that he has

not sustained the injuries. In the immediate records of the

Victoria Hospital, it is specifically mentioned that the history as

RTA, where two bus colluded each other on 17.11.2012 at 3:30

p.m., near Magadi. When the injured was taken to the hospital,

he has given the history that he has sustained the injury in the

road traffic accident where two buses colluded with each other.

The very contention of the Insurance Company cannot be

accepted and the same is found in Ex.P15.

19. The very contention that only in the Lakshmi

Hospital records for the first time vehicle number was

mentioned, the same cannot be a ground to interfere with. When

he admitted to the Victoria Hospital, he has given the history

that the involvement of vehicles and particularly vehicle numbers

are also given. When such being the case, the Court also cannot

expect the document with regard to when he was traveled in a

private bus i.e., bus ticket. Hence, the very contention of the

Insurance Company cannot be accepted and I do not find any

force in the contention of the Insurance Company and the details

of history was given on the date of accident itself at Victoria

Hospital in terms of Ex.P15. Hence, the counsel submission is

not accepted and I do not find any merit in the appeal filed by

the Insurance Company.

Point No.(ii):

20. 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

cp*