Karnataka High Court
Sri Mallikarjuna vs Smt. Manjula H G on 14 December, 2023
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MFA No. 2305 of 2019
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. 2305 OF 2019 (MV-I)
BETWEEN:
SRI MALLIKARJUNA,
S/O VITTALA M TALAVARA,
AGED ABOUT 27 YEARS,
R/ AT: NO.38, 1ST MAIN ROAD,
NEAR GOUTHAM SCHOOL,
KAMALANAGARA, BASAVESHWARANAGAR,
BENGALURU-560079.
...APPELLANT
(BY SRI SURESH M LATUR , ADVOCATE)
AND:
1 . SMT. MANJULA H.G.
W/O MANJUNATH,
NO.152/2/A, 4TH CROSS ROAD,
THYAGARAJA NAGARA,
Digitally signed by
VIJAYALAKSHMI BENGALURU-560028.
BN
Location: High
Court of 2 . THE MANAGER,
Karnataka CHOLAMANDALAM,
M.S.GENERAL INSURANCE COMPANY LIMITED,
UNIT NO.4, 9TH FLOOR,
GOLDEN HEIGHTS COMPLEX,
59TH 'C' CROSS, INDUSTRIAL SUBURB,
4TH 'M' BLOCK, RAJAJINAGAR,
BENGALURU-560010.
...RESPONDENTS
( BY SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR
SRI. B PRADEEP, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED)
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MFA No. 2305 of 2019
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.11.2018 PASSED IN MVC
NO. 1953/2017 ON THE FILE OF THE MEMBER, MACT, XVI
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU
CITY SCCH-14, DISMISSING THE CLAIM PETTIONER FOR
COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENCING AT
KALABURAGI, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award dated
15.11.2018 in MVC.No.1953/2017 by the learned XVI
Additional Judge and MACT, Court of Small Causes,
Bengaluru, the claimant/petitioner is before this Court in
appeal.
2. The petitioner contended that on 15.08.2016 at
about 03.00 p.m., when he was riding his motorcycle
bearing No.KA-02/JC-6668 on NH-206 at Arisikere, a
Canter bearing No.KA-53/A-6188 which was proceeding at
his front in high speed and zigzag manner, the right rear
portion brushed against the left handle of his motorcycle
resulting in his fall. Thereafter, he was taken to Arisikere
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Govt. Hospital and later, he was admitted to Sugana
Hospital, Bengaluru. It was contended that he was aged
about 25 years, working as a driver earning Rs.25,000/-
per month. It is contended that the accident was due to
the negligence of the Canter driver and the petitioner has
sustained permanent disablement and as such, he is
entitled for compensation from the owner and insurer of
the Canter. Respondent Nos.1 and 2 who are the owner
and insurer of the said Canter are liable to pay
compensation to the petitioner.
3. In pursuance to the notice, the respondent
No.1 did not appear despite service and as such, placed
ex-parte. The respondent No.2-Insurance Company
appeared and filed written statement resisting the claim
petition. It denied the accident, the manner in which the
accident happened and also denied the age, avocation and
income of the petitioner. It also contended that the said
vehicle was insured with it as on the date of accident, but
the driver was not having a valid driving licence. Alleging
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that there was violation of terms and conditions of the
policy, the claim was resisted by the insurer.
4. On the basis of the above pleadings, the
Tribunal framed appropriate issues and the petitioner got
himself examined as PW1 and Ex.P1 to Ex.P15 were
marked. Two witnesses were examined as PW2 and PW3.
The official of the respondent No.2 was examined as RW 2
and Ex.R1 and Ex.R2 were marked in evidence.
5. After hearing the arguments, the Tribunal
dismissed the petition holding that the involvement Canter
was not proved by the petitioner. Being aggrieved by the
said judgment, the petitioner is before this Court.
6. On issuance of notice, the respondent No.2-
Insurance Company appeared through its counsel, but the
respondent No.1 did not appear despite service of notice.
7. The arguments by learned counsel appearing
for the appellant/petitioner and the learned counsel for
respondent No.2-insurer were heard.
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8. The learned counsel appearing for the petitioner
would submit that the Tribunal erred in holding that the
involvement of the Canter owned by the respondent No.1
was not proved by the petitioner. He submits that the
Tribunal erred in holding that the cross-examination of
PW2-Dr.Nagaraja B.N., the doctor who treated the
petitioner, shows an admission of the involvement of
another motorcycle and such averment was also found in
the hospital records. It is submitted that Exs.P6 and P15
say that the accident was between Canter and motorcycle
or it was an RTA and therefore, a stray sentence in the
cross-examination of the doctor cannot be a ground to
reject the claim petition. He contends that the conclusion
of the Tribunal that it was a false implication of the vehicle
is not sustainable. He submits that there is ample material
to show that the accident occurred due to the negligence
of the Canter driver and therefore, the impugned
judgment is liable to be set aside.
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9. Per contra, learned counsel for the Insurance
Company contend that there was delay in filing the FIR,
the owner of the vehicle has not contested the matter and
that though there was a pillion rider, he did not file a
complaint/FIR immediately after the accident. He also
submits that a stray suggestion in the cross-examination
of the PW.1 by the Insurance Company cannot be a
ground to discard the overwhelming evidence which shows
collusion of the petitioner and the respondent No.1.
Therefore, he has defended the impugned judgment.
10. Before considering the evidence on record, it is
necessary to note that the Tribunal though had framed an
issue regarding the quantum of the compensation amount,
it has not determined the same. The Tribunal, when it had
framed the issue in respect of the quantum of the
compensation, it should have decided the said issue
though it dismissed the petition on issue No.1.
11. So far as the issue No.1 regarding involvement
of the vehicle is concerned, the evidence on record needs
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to be appreciated. In the cross-examination of PW.1, he
has stated that Police had informed him that they would
come and collect the complaint from the hospital, but they
had not come and that since his father was looking after
him, his father also could not file the complaint. He states
that the Canter lorry came from his behind and that he
had seen the lorry. He denies the suggestion that he had
dashed to the Canter lorry from behind as it was going in
front. He states that the pillion rider-Santosh had
sustained minor injuries. It is pertinent to note that the
cross-examination clearly shows a suggestion on behalf of
the respondent No.2 that the petitioner himself had driven
the motorcycle in negligent manner and had dashed to the
rear of the Canter lorry. This suggestion can be found on
two occasions on page No.3 of the cross-examination.
Thus, it appears that the respondent No.2 maintained a
contention that the petitioner had dashed against the rear
portion of the lorry. Nowhere there is any suggestion that
the said Canter lorry was not involved in the accident but
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it was another motorcycle which was involved in the
accident.
12. When the PW.1 was re-summoned for further
evidence, in the cross-examination it was elicited that
though it was written in Ex.P14 that there was collision
between the two motorcycles, he denies that it was
wrongly written. He says that his uncle had given a
complaint in different manner and the Ex.P14 is the
hospital records.
13. The PW.2-Dr.Nagaraj B.N. happens to be a
Orthopedic Surgeon working at Suguna Hospital,
Bengaluru. He has stated about the disability of the
petitioner and according to him there was 49% disability
to the right lower limb and 44% to the left lower limb and
whole body disability is opined to be 30%. In the cross-
examination by learned counsel for respondent No.2, it
was elicited that in Ex.P12 i.e., case sheet it was
mentioned that patient was riding the bike and it touched
another bike handle, then the bike skid resulting in the
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accident. It is elicited that in the said hospital record is on
the basis of the information given at the time of the
admission to the hospital. It is pertinent to note that it
was the suggestion made to PW.2 about the contents of
Ex.P12. The say of PW.2 will not be of much importance
when the Ex.P12 itself is before the Court. A perusal of
Ex.P12 would show that it was written as "patient was
riding bike touch another bike handle then bike skid in
Arasikere at 3.00 p.m." It is pertinent to note that it was
also written that the first aid was given at Jayachamaraja
Hospital in Arasikere and for further treatment, he was
shifted to Suguna hospital. It is evident that the petitioner
was initially taken to Government Hospital at Arasikere.
Therefore, what is written in the Government Hospital,
Arasikere would also throw light on the manner in which
the accident has happened. The PW.2 was evidently
deposing on the basis of the contents of Ex.P12 and he
was not the author of Ex.P12 case sheet.
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14. PW.3 happens to be Santosh Kumar and the
pillion rider of the motorcycle. He states that when he was
proceeding as pillion rider, the Canter lorry was being
driven in a zigzag manner and the right rear portion of the
Canter touched against the motorcycle resulting in the
accident. They were shifted to the Government Hospital at
Arasikere in a autorickshaw and thereafter, the petitioner
was shifted to Suguna Hospital, Bangalore. The cross-
examination of PW.3 nowhere show that he had admitted
about the involvement of another motorcycle. In fact, he
has denied the said suggestion. He pleads ignorance about
the contents mentioned in the case sheet of the petitioner
at Ex.P12.
15. PW.4 happens to be the official of the
Government Hospital, Arasikere who produced the MLC
register extract. The said MLC register extract is marked
at Ex.P15. He states that the contents of Ex.P15 are
written on the basis of the information given at the
Government Hospital. He has stated that Dr.Dhananjaya
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had written the Ex.P15. He states that the correction in
Ex.P15 was incorporated by the said Dr.Dhanajaya.
16. The perusal of Ex.P15, the MLC Register Extract
would show that it was written when the petitioner was
taken to the Government Hospital at Arasikere and the
entry shows as below:
"History of RTA today at 3.00 p.m. near Jajuru.
Patient was traveling on bike and was it hit by a
Canter. Complain of injury to right thigh and femur."
It is pertinent to note that below the word 'Canter',
the vehicle number is written as 'KA-53-A-6188'.
Obviously, this writing of the vehicle number is in different
handwriting. It is pertinent to note that the "bike and it
was hit by the Canter" is in the same hand writing and this
aspect is also noted by the Tribunal. It has also noted that
the vehicle number is written in a different ink.
17. The accident had occurred on 15.08.2016 and
the complaint was lodged on 13.09.2016 after delay of 28
days. Obviously, the complaint was lodged by none else
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than the father of the petitioner. Now the question is
whether this evidence would sufficiently disprove the
involvement of the Canter vehicle. The learned counsel
appearing for the respondent No.2 would submit that the
suggestion to PW.1 in the cross-examination would be a
stray suggestion and it cannot be of much importance.
Initially, the Insurance Company took up the contention
that the Canter was going at the front and the petitioner
had dashed his motorcycle from behind. This aspect is
clearly clarified by PWs.1 and 2. It is worth to note that
the Canter lorry had overtook the motorcycle and it was
moving in zigzag manner and the rear right portion of the
lorry hit the left handle of the motorcycle resulting in the
fall. Obviously, this can also be viewed as a skid.
Therefore, it is pertinent to note that the suggestion to the
PW.1 by the Insurance Company showed that there was
involvement of the vehicle i.e. Canter lorry. The narration
of the incident in Ex.P2-the complaint also show that the
Canter lorry driver was driving in zigzag manner and he
pulled the vehicle to the left side and then again to the
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right and at that time the rear right portion of the lorry
had come in contact with the handle of the motorcycle.
Obviously, when the motorcycle is hit to the handle, it
resulted in fall of the petitioner and the pillion rider.
18. The first contention of the Insurance Company
is that there was a delay. Obviously, the delay has been
explained by the petitioner and his father in the complaint
as well as in the testimony of the PW1. Obviously, the
records reveals that the petitioner was immediately shifted
to Suguna Hospital, Bengaluru from Arasikere. The
distance between Arasikere and Bangalore is obviously
more than three hours and it cannot be said that the
petitioner could have lodged the complaint to the police.
If at all there was an MLC extract and Police intimation
was issued by the Hospital authorities, there is no reason
as to why the Police did not visit the hospital and recorded
the statement. In order to show that the MLC intimation
was not issued by the hospital to the Police, the
Investigating Officer was not examined. Therefore, the
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explanation given by the petitioner in the complaint as
well as in his oral testimony holds the field.
19. The pillion rider was examined by the petitioner
as PW3. He states that he also had fallen down but there
is no elicitation as to why he did not file the complaint to
the police. However, he says that his statement was
recorded at Rajajinagar Traffic Police Station at Bengaluru.
He was also present at the time of the spot mahazar. The
perusal of the spot mahazar which is at Ex.P3 shows that
the spot was shown by the PW3 and the accident had
happened on the left side of the road. From the perusal of
these records, it is evident that the accident had occurred
on the left side of the tar road which is a single road.
20. The wound certificate issued by the Suguna
Hospital at Ex.P4 does not mention the manner in which
the accident had happened. Ultimately the Police had filed
the charge sheet against the driver of the Canter as per
Ex.P5.
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21. The learned counsel appearing for the
petitioner/appellant placed reliance on the judgment of
this Court in VENKATESH K.N. V/S TIPREGOUDA1,
wherein it was held that delay of 33 days in filing the
complaint alone cannot be a reason to doubt the accident.
It was held that in Indian conditions it is not expected that
the person would rush to the police station after the
accident as treatment of the victim is given priority over
lodging the FIR; nothing elicited during cross examination
of the claimant to disbelieve his testimony with regard to
the manner of the accident and mere delay cannot be a
ground to doubt that claim. In that regard this court had
relied on the decision in the case of RAVI V/S
BADRINARAYAN & ORS2.
22. The learned counsel for the petitioner also relied
on the decision in the case of SADASHIV RAMAPPA
2022 ACJ 170
2011 ACJ 911 SC
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KOTIYAN VS UNION OF INDIA3, rendered by Bombay
High Court, which relates to a Railway accident. He also
relied on a decision in the case of YELLAPPA SHIVAPPA
SAJALLI V/S ASHOK BALLAPPA NAIK,4 where it was
held that merely because the wound certificate, the
purpose of which certificate is to speak about the nature of
the injuries but not necessarily the manner of occurrence
of the accident, the other party cannot solely bank upon
and contend that an observation made in the that
document itself is complete and absolute truth. He also
relied on the decision in the case of NATIONAL
INSURANCE COMPANY LTD. VS SHEELA DEVI &
ORS5, rendered by Calcutta High Court, wherein it was
held that delay alone cannot be a cause to disbelieve the
accident itself. Lastly he relied on the decision rendered
by this Court in the case of BAJAJ ALLIANZ GENERAL
INSURANCE V/S SMT LAKSHMAMMA AND OTHERS6,
2022 ACJ 175
2018 (1) KCCR 351
2020 ACJ 916
2008 Kan MAC 145
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wherein it was held that if really vehicle was not involved,
a false case has been lodged and if the owner has colluded
with the claimants it was for the insurance company to
challenge the same to quash the charge sheet and to
direct the police to investigate properly and file
appropriate case.
23. The Apex Court in the case of RAVI V/S
BADRINARAYAN (Supra) has categorically held that the
delay alone cannot be a ground to disbelieve the accident.
Now in the case on hand, the petitioner has explained that
he was shifted to Suguna Hospital, Bengaluru from
Arasikere. Obviously, the distance between Arasikere and
Bangalore should also be kept in mind while looking to the
capability of the petitioner to file a complaint to the Police.
It is not the case of the respondent No.2-Insurance
Company that petitioner was not admitted to Suguna
Hospital. Therefore, the delay has been sufficiently
explained by the petitioner.
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24. The second aspect to be noted is about the
manner in which the accident occurred. As noted supra in
the cross examination of PW.1 it was suggested to him
that the accident occurred as the petitioner himself dashed
to the rear of the Canter lorry. There is no suggestion at
the first instance that the lorry was not at all involved in
the accident. On a subsequent occasion when the PW.1
entered the witness box, it was suggested that the
accident was between two motorcycles. Obviously, it is an
improvement in the stand of the insurer. The Ex.P14 is the
certified copy of the order sheet of the Criminal Court
wherein the driver of the lorry had pleaded guilty. This
document is not of any help to the petitioner. The Ex.P15
no doubt mention the vehicle number in a different hand
writing, the word Canter was written in a single line at a
first instance. Under these circumstances, it appears that
the Tribunal had not bestowed its attention on the cross-
examination of PW.1, wherein the insurer suggested that
the petitioner himself had dashed against the rear of lorry.
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Though FIR was registered after 28 days of the accident,
there is explanation for delay in lodging the FIR.
25. The Ex.P12, the case sheet is relied by the
Insurance Company heavily. The Ex.P12 seems to have
been written on behalf of Dr.Ravindra. It is not known who
wrote in the case sheet. Therefore, Ex.P12 cannot be of
much relevance as it came into existence on 16.08.2016.
From the perusal of the above material on record, it is
evident that the delay has been sufficiently explained, the
writings in Ex.P12 is not properly explained by the
concerned medical officer and obviously the PW2 is not the
author of the said document. On examination of these
aspects in totality, it appears that the accident had
occurred involving the Canter lorry. Therefore, the
conclusion reached by the Tribunal appears to be incorrect
and as such the said finding is improper and is perverse.
26. Therefore issue No.1 should have been
answered by the Tribunal in the affirmative.
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27. Coming to the quantum of compensation, the
petitioner had sustained fracture of the right femur,
minimally displaced fracture of left medial malleolus and
special injuries as per the wound certificate at Ex.P4. The
discharge summary produced at Ex.P11 shows that the
injury was treated with closed reduction internal fixation
with IM nailing for the fracture of shaft of femur, ORIF
with cancellous screws for medial malleolus fracture and
wound debridement was done in respect of the facial
injury. The PW.2 in his testimony states that there is
disability of 49% to the right lower limb and 44% to the
left lower limb. Therefore he opines that the whole body
functional disability is 30%. It is settled principle of law
that the assessment of disability to be made by the
medical officer is only in respect of physical disability but it
cannot be functional disability. The functional disability has
to be assessed by the Tribunal with reference to the
avocation, age and other factors relating to the injured.
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28. The petitioner states that he was working as
driver at Amma Granites Company and now he is unable
to do earlier work or any other manual work. In order to
establish that he was a driver, he has produced the driving
licence at Ex.P7. Obviously the licence is in respect of the
transport vehicle with effect from 10.07.2019. The
accident had occurred on 15.08.2016. It is evident that
the transport vehicle licence was obtained subsequent to
the accident. Therefore, the disability as stated by the
PW1 cannot be accepted. At the most it can be said that
there is some difficulty for the petitioner in performing his
job as a driver. Therefore, it would suffice to hold that the
petitioner would be entitled for substantial compensation
under the head of loss of amenities in life but not towards
loss of future earning.
29. Considering the nature of the injuries sustained
by the petitioner, a sum of Rs.50,000/- is awarded to him
under the head of 'pain and suffering'; considering the fact
that he was in patient from 15.08.2016 to 20.08.2016 at
Suguna Hospital a sum of Rs.10,000/- under the head of
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attendant charges, conveyance etc., is awarded. The
petitioner is also entitled for a sum of Rs.28,500/- under
the head 'loss of income during laid up period' by
considering the notional income of the petitioner at
Rs.9,500/- and that he was unable to resume his work at
least for a period of three months. Further, the petitioner
is also entitled for a sum of Rs.75,000/- under the head of
'loss of amenities' in life which would include the 'loss of
future earning capacity'. The petitioner has produced
medical bills worth Rs.1,60,864/-. The same is rounded off
to Rs.1,61,000/- and awarded to the petitioner. Hence,
the petitioner is entitled for compensation of Rs.3,24,500/-
under the following heads.
Pain and sufferings Rs.50,000/-
loss of income during laid up Rs.28,500/-
period
Attendant charges, conveyance Rs.10,000/-
etc.,
loss of amenties in life Rs.75,000/-
Medical expenses Rs.1,61,000/-
Total Rs.3,24,500/-
30. For the aforesaid reasons, the appeal
deserves to be allowed. Hence, the following:
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ORDER
The appeal is allowed.
The petitioner/appellant is entitled for a
compensation of Rs.3,24,500/- along with
interest at the rate of 6% per annum from the
date of petition till its deposit before the
Tribunal. Impugned judgment and award is
modified accordingly.
The respondent No.2 insurance company
is directed to deposit the compensation
amount within a period of three months from
today.
In the event of deposit of the
compensation amount, entire amount be
released to the petitioner.
Sd/-
JUDGE
SMP
