Karnataka High Court
M/S Oriental Insurance Company Limited vs Sri. H P Jagadish on 6 December, 2023
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MFA No. 7587 of 2014
C/W MFA No. 7412 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 7587 OF 2014 C/W
MFA NO. 7412 OF 2014 (MV-I)
IN MFA NO. 7587 OF 2014
BETWEEN:
SRI H P JAGADISH
S/O LATE PARAMESHWARAIAH
AGED ABOUT 33 YEARS
R/O SHARANAM NIVASA, NO.1465
PARK ROAD, NORTHERN EXTENSION
HASSAN-573 201 ...APPELLANT
(BY SRI. SAMPATH KUMAR A.V., ADV. FOR
SRI. PRATHEEP K C., ADV.)
AND:
1. H P SHIVAKUMAR
S/O LATE PARAMESHWARAIAH
AGED ABOUT 37 YEARS
R/O NO.1465, PARK ROAD
Digitally signed by MALA K HASSAN-573 201
N
Location: HIGH COURT OF
KARNATAKA 2. ORIENTAL INSURANCE COMPANY LTD
DIVISIONAL OFFICE, S.S.COMPLEX
SUBHASH SQUARE, HASSAN-573 201
...RESPONDENTS
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI. A M VENKATESH FOR R2., ADV.;
VIDE ORDER DATED 09.10.2015
NOTICE TO R1 DISPENSED WITH)
IN MFA NO. 7412 OF 2014
BETWEEN:
M/S. ORIENTAL INSURANCE COMPANY LIMITED
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MFA No. 7587 of 2014
C/W MFA No. 7412 of 2014
DIVISIONAL OFFICE, S.S.COMPLEX
SUBHASH SQUARE, HASSAN-573 201
REP. BY ITS DIVISIONAL MANAGER ...APPELLANT
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI. A M VENKATESH FOR R2., ADV.)
AND:
1. SRI H P JAGADISH
S/O LATE PARAMESHWARAIAH
AGED ABOUT 33 YEARS
2. H P SHIVAKUMAR
S/O LATE PARAMESHWARAIAH
AGED ABOUT 37 YEARS
BOTH ARE R/O SHARANAM NIVASA
NO.1465, PARK ROAD
NORTHERN EXTENSION
HASSAN-573 201 ...RESPONDENTS
(BY SRI.SAMPATH KUMAR A.V., ADV. FOR
SRI. A. M. VENKATESH, ADV. FOR R1;
R2 SERVED)
THESE MFAs ARE FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
13.08.2014 PASSED IN MVC NO.1868/2012 ON THE FILE OF
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION. AND AWARDING A COMPENSATION OF
RS.2,52,065/- WITH INTERST AT 6% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF PAYMENT IN MFA NO.7412 OF
2014.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In these two appeals, both the petitioner as well
as the Insurance Company have challenged the
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judgment and award dated 13.08.2014 passed by the
learned II Additional District and Sessions Judge and
Additional MACT, Hassan ('the Tribunal for brevity) in
M.V.C.No.1868/2012.
2. For the sake of convenience, the parties shall
be referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 22.04.2011 at
about 10.30 p.m., the petitioner being the pillion rider
in motor bike bearing No.KA-13/K-5388 ridden by his
brother near Meridian Hotel met with an accident and
sustained injuries. After taking treatment at Mangala
Hospital, Hassan and Tejaswini Hospital, Mangalore, he
has approached the Tribunal for grant of compensation
of Rs.15 lakhs with 9% interest. Claim was opposed
by the owner and Insurance Company of the motor
bike. After taking the evidence, the Tribunal passed
the impugned judgment awarding compensation of
Rs.2,52,065/- with 6% interest to be paid by both
owner and insurer of the motor cycle. Pleading
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inadequacy and seeking enhancement, the petitioner
has filed M.F.A.No.7587/2014 whereas, challenging the
liability, the Insurance Company has filed
M.F.A.No.7412/2014 on various grounds.
4. Heard the arguments of Sri.A.V.Sampath
Kumar, learned counsel for the petitioner and
Sri.Lakshminarasappa, learned Counsel for Insurance
Company.
5. It is the contention of the learned counsel for
the petitioner that the petitioner has proved the
accident, rider of the motor cycle has pleaded guilty
after the charge sheet. The petitioner has suffered
fracture of both bones of right leg and fracture of 4th
metatarsal of right leg. The Tribunal has not awarded
any compensation for loss of amenities and discomfort,
not properly assessed the loss of future income and
sought for enhancement.
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6. Per contra, learned counsel for the Insurance
Company has contended that the alleged accident took
place on 22.04.2011 whereas complaint to the Police
was filed on 30.04.2011. There is 9 days' delay in
filing the complaint. Both the petitioner and the owner
of the motor cycle are the brothers and they are
residing in the same house. There is no medical
evidence to show that on 22.04.2011, the petitioner
was admitted to Mangala Hospital, Hassan. The Police
intimation sent to the Police from Mangala Hospital was
reached only on 30.04.2011. There is no material to
show that at Mangala Hospital, there is any report
about the accident and the injury sustained by the
petitioner is on account of alleged accident. There is a
collusion between the petitioner and his own brother in
connivance with the Police, all the records have been
concocted for the sake of compensation by playing
fraud against the court and sought for exoneration on
the part of the Insurance Company.
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7. I have given my anxious consideration to the
arguments addressed on behalf of both parties and
also perused the materials on record.
8. The material on record did point out that on
22.04.2011 at about 10.30 p.m., the petitioner and
first respondent being the brothers were travelling in
motor cycle bearing No.KA-13/K-5388. The rider did
not notice the road hump, due to which, the petitioner
fell down and sustained injuries. Ex.P6 is the Police
intimation, which is signed by Dr.Abdul Basheer,
Surgeon at Mangala Hospital, Hassan. The case sheet
pertains to Mangala Hospital is made available before
the Court as per Ex.P16.
9. It is pertinent to note, Ex.P16 carries only
discharge summary, there is no reference of
admission, or history of the accident, no MLC was
registered and information about who has brought the
petitioner to the hospital. Ex.P6 is the Police
intimation, which refers the details of the accident and
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it was stated to be dispatched from Mangala hospital
on 23.04.2011, but it carries endorsement from the
Police on 30.04.2011. It is interesting to note that the
complaint was filed on 30.04.2011. It is further
interesting to note that the Investigating Officer has
seized the motor cycle between 3.30 p.m. and 04.00
p.m. under Ex.P4/mahazar. Whereas the IMV
Inspector goes to the Police Station premises and
inspected the motor cycle at 1.15 p.m. even prior to
seizure. It is not the case that rider himself took the
motor cycle to the IMV Inspector. This goes to show
that before seizure itself, the inspection is conducted
on the motor cycle. This demonstrates that Ex.R3 as
well as Ex.P10 are concocted.
10. After investigation, final report is filed in
C.C.No.813/2011 and the first respondent has
accepted his guilt and paid the fine. Ex.P12 is the case
sheet pertains to Tejasvini Hospital, Mangalore. In the
treatment records, there is no mention that the
petitioner has sustained injury in the road traffic
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accident. The accident took place within the limits of
Hassan town where the Traffic Police Station is located
within a distance of 1 kilometer. Though the Police
intimation was despatched on 23.04.2011, it reaches
the Police Station after 8 days for travelling 1
kilometer. It is interesting to note that Police
intimation, wound certificate and case sheet everything
is managed by Dr.Abdul Basheer, the Orthopedic
Surgeon. No other staff of Mangala hospital is involved
in doing clerical activities. These are the activities
which go to explain that after 8 days of the accident,
complaint has been lodged; PW-2/Abdul Basheer
admits in his cross-examination that at Mangala
Hospital, no MLC was registered.
11. If there was an accident of this nature, why
MLC was not registered, finds no explanation. Hence,
everything is preplanned and documents have been
manipulated. Therefore, the Insurance Company is
able to demonstrate the fraud played by petitioner and
respondent No.1 for the sake of compensation.
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12. It is not necessary to dismiss the claim as the
wound certificate did point out that the petitioner has
suffered fracture of right Tibia and Fibula, fracture of
4th metatarsal of right leg and he has suffered
disability. The Tribunal has assessed the disability at
10%, but it has taken income at Rs.6,000/-. The
income is of the year 2011, hence, minimum income
shall be taken at Rs.6,500/- per month. Accordingly,
loss of future earning has to be calculated. The
petitioner is aged 31 years, the applicable multiplier is
'16'. Then the loss of income due to disability will be:
Rs.6,500/- + Rs.2,600/- (40%) = Rs.9,100/- x 12 x 16
x 10% = Rs.1,74,720/-. No compensation awarded
towards loss of amenities and discomfort. It has to be
assessed at Rs.30,000/-. The Tribunal awarded
compensation for the laid-up period at Rs.3,000/-, but
it shall be minimum of 4 months and it has to be
Rs.26,000/-. Rest of the compensation awarded by
the Tribunal is kept intact. The petitioner is entitled to
compensation as under:
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Sl. No. Particulars Rs.
1 Pain and sufferings 30,000/-
2 Medical expenses 95,865/-
3 Loss of earning during 26,000/-
treatment
4 Loss of future earning capacity 1,74,720/-
5 Loss of amenities and 30,000/-
discomfort
6 Conveyance, nourishment and 8,000/-
attendant charges
Total 3,64,585/-
In total, petitioner is entitled to Rs.3,64,585/-
as against Rs.2,52,065/- awarded by the Tribunal,
thereby enhancement of Rs.1,12,520/-, which is the
just compensation to which the petitioner is entitled.
13. As regards liability is concerned, in view of
the above discussion, the Insurance Company cannot
be fastened to pay compensation for the fraud played
by the petitioner and the respondent No.1 alone has to
pay compensation. Hence, both the appeals merit
consideration. In the result, the following;
ORDER
(i) Both appeals are allowed in part;
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(ii) The impugned judgment and award stands
modified;
(iii) The petitioner is entitled to total
compensation of Rs.3,64,585/- with
interest @ 6% per annum from the date of
petition till deposit;
(iv) The liability fastened on the Insurance
Company to pay the compensation is set
aside.
(v) The 1st respondent alone is held liable to
satisfy the entire award amount within a
period of eight weeks from the date of
receipt of a certified copy of this judgment.
(vi) Insurance Company is entitled to receive
back the amount it has deposited.
Sd/-
JUDGE
KNM
CT:HS
