Karnataka High Court
The New India Assurance Co Ltd vs Hanumantharaya @ on 14 December, 2023
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MFA No. 774 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 774 OF 2018 (MV-I)
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD.,
D 0 III, MAHALAXMI COMPLEX,
M.G. ROAD,
BENGALURU-560 001
POLICY ISSUED AT
THE NEW INDIA ASSURANCE CO. LTD.,
BASAVANAGUDI CITY DO X, NO.52,
1ST FLOOR, VINAY COMPLEX,
VANIVILAS ROAD, OPP. NATIONAL
COLLEGE, BASAVANAGUDI,
BENGALURU-560 004.
BY ITS MANAGER.
...APPELLANT
Digitally signed by (BY SRI O MAHESH, ADVOCATE)
VIJAYALAKSHMI
BN
Location: High AND:
Court of
Karnataka
1 . HANUMANTHARAYA @
HANUMANTHARAYAPPA,
S/O KARUBALAPPA,
AGED ABOUT 55 YEARS,
JANATHA COLONY,
ANTHARASANAHALLI WARD NO.1,
TUMKUR DISTRICT-572 106.
2 . SRI BALAJI C,
S/O NARASIMHALU CHETTY.C,
NO.668/13-1, 8TH MAIN,
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MFA No. 774 of 2018
5TH CROSS, BSK 2ND BLOCK,
1ST STAGE, BENGALURU-572 106.
...RESPONDENTS
(BY SRI SHIVAKUMAR P, ADVOCATE FOR R-1;
R-2 SERVED, AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 16.09.2017 PASSED IN MVC
NO.4492/2016 ON THE FILE OF THE 21ST ADDITIONAL SMALL
CAUSE JUDGE & 19TH ACMM, MEMBER, MACT, BENGALURU,
AWARDING COMPENSATION OF RS.2,98,841/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VC AT KALABURAGI, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award passed
by the learned XXI Additional Small Cause Judge and XIX
ACMM and Member, MACT, Bengaluru, in
MVC.No.4492/2016 dated 16.9.2017, respondent No.1
Insurance Company has approached this Court in appeal.
2. For the sake of convenience, the parties would
be referred to as per their ranks before the Tribunal.
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3. Brief facts of the case are as below:
The case of the petitioner, who was injured in the
accident on 20.04.2016 at about 9.15 p.m., is that he was
walking on Tumkur-Bengaluru NH-4 Road, near Anjaneya
Statue at Jakkasandra, near Nelamangala, the driver of
car bearing No.KA-05-MP-2636 owned by respondent No.2
and insured by respondent No.1 drove the same in a rash
and negligent manner and hit the petitioner from his back
side resulting in the accident. As a result, the petitioner
fell down and sustained multiple injuries i.e., fracture of
middle of right tibia, fibula and also the fracture of the
right metacarpal of the index middle finger and ring
fingers. Immediately, the petitioner was shifted to
Government Hospital, Nelamangala, and then he was
shifted for higher facility at Tumkur Government Hospital.
He was inpatient for about three weeks. He contended that
the police have registered the case against the driver of
offending car and after investigation the charge sheet was
filed. The petitioner contended that he was aged 53 years
and was earning Rs.12,000/- p.m., from his coolie work
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and he has sustained permanent disability and therefore,
he is entitled for compensation from the owner and insurer
of the car.
4. In response to the notice, respondent No.1-
Insurance Company has appeared through its counsel
before the Tribunal and resisted the petition. Inspite of
service of notice, respondent No.2 remained absent and
placed exparte.
5. Respondent No.1-Insurance Company
contended the petition has been filed on imaginary
grounds and the vehicle has been implicated falsely in
order to make unlawful gain. It is mainly contended that,
the copy of MLC register of the Government Hospital,
Nelamangala, shows that the accident was due to a lorry
and also a car and therefore, involvement of Car is
doubtful. Coupled with this, there is three days delay in
filing the complaint and therefore, the petitioner has filed
a false petition by colluding with the owner of the car and
as such it is liable to be dismissed. Inter alia, it was also
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contended that the compensation claimed is highly
exorbitant, excessive and imaginary and that the owner of
the car has violated the terms and conditions of the policy.
6. The Tribunal on the basis of the above
pleadings, framed appropriate issues and the petitioner
was examined as PW.1 and examined two witnesses as
PWs.2 and 3 and Exs.P1 to P17 were marked in evidence.
Respondent No.1-Insurance Company examined its official
as RW.1 and two witnesses were examined on its behalf as
RWs.2 and 3 and Exs.R1 to R5 were marked in evidence.
7. After hearing the arguments by both the sides,
the Tribunal held that the respondent No.1 being the
insurer of the vehicle is liable to pay the compensation and
as such awarded a compensation of Rs.2,98,841/- under
different heads and fastened liability on the respondent
No.1- Insurance Company.
8. Being aggrieved by the said judgment and
award, the respondent No.1-Insurance Company has
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approached this Court in appeal seeking to absolve it from
liability.
9. On issuance of notice by this Court, the
respondent No.1/petitioner has appeared through his
counsel. However, respondent No.2-Owner of the car has
not appeared despite service of notice. On admitting the
appeal, the Tribunal records have been secured.
10. The arguments by the learned counsel
appearing for the appellant-Insurance Company and the
learned counsel appearing for respondent No.1/petitioner
were heard.
11. The learned counsel appearing for the
appellant-Insurance Company contends that though the
petitioner has given a statement to the Police soon after
he was taken to the hospital, such complaint was never
registered by the police. He points out that the complaint
was received by the Police after three days of the accident
from the son of the petitioner and the case made out by
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petitioner is that, soon after the accident, one of the
eyewitness of the accident had put a chit containing the
offending car number in the pocket of the petitioner and
the said person by name Manjunath, who allegedly had
seen the accident has not been examined. It is contended
that there is overwriting in the MLC register extract and
the IMV report also shows that it was prepared after 22
days. He contends that the spot mahazar which was
conducted immediately after registering the case and
Ex.P4, which is seizure mahazar, shows the manipulation
of the dates. It is contended that the discharge summary
and case sheet simply mentions that it was an RTA and
details of the vehicles causing the accident was never
mentioned by the petitioner before the Medical Authorities.
It is contended that RW.2 is the Investigating Officer of
the Nelamangala Police Station and RW.3 is the Medical
Officer, who received the petitioner in the hospital and
they say that the lorry and the car is mentioned in the
MLC register extract. Therefore, it is contended that it is a
doubtful case, wherein the vehicle has been falsely
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implicated and as such, the petition should have been
dismissed by the Tribunal.
12. Per contra, the learned counsel appearing for
respondent No.1/petitioner contends that the Tribunal has
given sufficient reasons and has appreciated the evidence
on record. He contends that the connivance between the
petitioner and the owner of the car is not established by
the Insurance Company. He contends that the petitioner
being a Coolie, was initially taken to the Nelamangala
Hospital and thereafter, he was shifted to the Government
Hospital at Tumkur. The evidence of the Investigating
Officer and the Medical Officer, who were examined as
RWs.2 and 3, shows that there is no scope for any
suspicious circumstance and therefore, the totality of the
evidence has been considered by the Tribunal and the
involvement of the car is established by the petitioner.
13. The perusal of FIR produced as Ex.P1 shows
that a case was registered by the Police on 23.4.2016 at
about 2.00 p.m. on the basis of the complaint filed by the
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son of the petitioner. In the said complaint, it is stated
that the petitioner was working as a Coolie in sand lorries
and he used to stay at Lorry Stand at Nelamangala. He
states that on 21.4.2016, somebody had called him and
informed him that his father met with an accident and he
was admitted to Nelamangala Government Hospital and
therefore, he along with his mother came to the hospital
and the Doctors informed that the petitioner is to be taken
to the Government Hospital at Tumkur. Then he was told
by the petitioner that on 20.4.2016 at about 9.15 p.m.
while the petitioner was walking on the service road of the
National Highway, towards Kunigal Circle, the car came
from behind and dashed him. It is stated that the car
driver has talked to the petitioner and had seen him, but
when people gathered, the car driver escaped from the
spot. It is stated that somebody had put chit containing
the car number in the pocket of his father (petitioner) and
then he was shifted in toll ambulance to the Nelamangala
Hospital.
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14. The MLC Register extract produced by the
respondent No.1- Insurance Company at Ex.R5 show that
at 9.15 p.m., the Medical Officer who received the
petitioner in the hospital wrote the same. It is stated in
the MLC register extract that:
"..the accident had occurred at about 8.00
p.m. hit by lorry No......vehicle - Car."
Obviously, the lorry Number or the Car Number is
not mentioned in the MLC register. There is no reason to
believe that the history of the car causing the accident has
been inserted at a later time. In the MLC extract, it is also
mentioned that there is fracture of the middle portion of
the right leg. It is also stated that the Police were
informed about the accident and there was no attendant to
the petitioner. Thus, it is evident that except the mention
of "lorry" without its number or car number in the MLC
extract, there is no doubtful circumstance which shows
that the car was not involved in the accident.
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15. The petitioner who is examined as PW.1 has
stated in his cross-examination that, Police had visited him
when he was in Nelamangala Government Hospital and
they have recorded his statement. He admits that his son
lodged the complaint after four days of the accident. He
states that he had not given the chit, which was kept in
his pocket to the doctors of the Nelamangala Hospital.
Obviously, his evidence cannot be doubted as there is
nothing which shows that someone had accompanied him.
Obviously, the petitioner had sustained the injuries and he
had informed the Police about the accident and even then
the Police had not registered the case. When such
contention is taken up, the MLC register extract gains
importance. Obviously, MLC register extract was not
manipulated or there are no such interpolations.
16. The testimony of the Medical Officer who
recorded the information in the MLC extract who is
examined as RW.3 shows that the Head Constable-N
Nagaraj (HC 360) had received the Police intimation. He
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had deposed on the basis of the records he had brought to
the Tribunal to give his evidence. He states that there was
no attendant who could give the details and he states that
he does not remember whether the Police had gone to the
hospital to record the statement of the petitioner. The
evidence of RW.3 cannot be doubted for any reason.
Though the Insurance Company examined RW.3, there is
nothing which is helpful to it. Thus, the evidence of RW.3
sufficiently proves the MLC Register Extract, which is
produced at Ex.R5. When Ex.R5 clearly mention that the
accident was due to involvement of car, the mention that a
'lorry' was also there cannot be of much relevance.
Obviously, the petitioner was unaware of the number of
the car. Subsequent to the registration of FIR, RW.2 who
was the Police Inspector has investigated the matter and
ultimately, filed the chargesheet against the respondent
No.2-owner and driver.
16. It is pertinent to note that the vehicle was
examined by the Motor Vehicle Inspector on 12.5.2016
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and he had received the requisition by the Police on the
same day. No visible damages were found on the car at
the time of the inspection. Obviously, when the car had hit
the petitioner from behind, there could not be any such
damages on the vehicle and that too, after a span of
nearly 20 days, it is difficult to say that the damages
would remain visible.
17. After perusal of the above evidence on record,
this Court also comes to the conclusion that the version of
PW.1 that somebody among the public had kept a chit
containing the number of the car and he came to know
about it later time and the same cannot be doubted.
Moreover, the mention of car in the MLC Register extract
by RW.3 cannot be doubted and there are no such
suspicious circumstances that the MLC Register extract
had been manipulated at a later point of time. Therefore, I
am unable to accept the contentions of the learned
counsel appearing for the insurance Company.
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18. It is trite law that a claim under the tortuous
liability has to be assessed on the basis of the
preponderance of probability. The evidence available on
record in the form of investigation by RW.2 sufficiently
establishes that the vehicle belonging to respondent No.2
was involved in the accident. It is not the case of the
appellant-Insurance Company that the petitioner had been
discharged from the hospital when the complaint was
lodged. Obviously, the son of the petitioner had lodged the
complaint, wherein the fact that a chit containing the
number of the car was found in the pocket of the clothes
of the petitioner. This contention is not falsified by any
evidence on record, though RWs.2 and 3 were examined
by the Insurance Company. Under these circumstances, I
am unable to accept the contention of the learned counsel
for the appellant-Insurance company. As a consequence,
the appeal is liable to be dismissed. Hence, the following:
ORDER
(i) The appeal is dismissed.
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(ii) The impugned Judgment and Award
dated 16-09-2017 passed by the Tribunal in
MVC No. 4492/2016 is hereby confirmed.
(iii) The statutory amount in deposit in
this appeal is ordered to be transmitted to the
Tribunal forthwith.
Sd/-
JUDGE
tsn*
