Karnataka High Court
The Manager vs Paramesha on 3 January, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.6030/2017 (MV-I)
C/W
M.F.A.CROB.NO.158/2017 (MV-I)
M.F.A.NO.6030/2017:
BETWEEN:
THE MANAGER,
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED,
BRANCH OFFICE,
CHIKKAMAGALURU DISTRICT-577 140.
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.44/45, RESIDENCY ROAD,
BANGALORE-560 025.
REPRESENTED BY ITS REGIONAL MANAGER.
...APPELLANT
(BY SRI B.S. UMESH, ADVOCATE)
AND:
1. PARAMESHA,
S/O GANESH,
AGED ABOUT 42 YEARS,
R/AT ARASIKOPPA, SIGASE,
PERMANENTLY R/AT MANDAGADDE,
THEETHAHALLI TALUK,
SHIMOGA DISTRICT-577 220.
2. NARAYANGOWDA S.N.,
S/O NAGAPPAGOWDA,
AGED ABOUT 57 YEARS.
2
3. SMT. SAVITHRAMMA,
W/O SUBBARAYAGOWDA,
MAJOR EXACT NOT KNOWN TO APPELLANT.
R-2 AND R-3 ARE R/AT SIGASE,
ARALIKOPPA, KOPPA TALUK,
CHIKKAMAGALURU DISTRICT-577 117.
...RESPONDENTS
(BY SRI SATISH R. GIRJI, ADVOCATE FOR R1,
R2 AND R3 ARE SERVED AND UNREPRESENTED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 07.04.2017 PASSED
IN MVC NO.455/2015 ON THE FILE OF THE 2ND ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, CHIKKAMAGALURU & MACT,
ITINERATE AT KOPPA, AWARDING COMPENSATION OF
RS.12,27,244/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
M.F.A.CROB.NO.158/2017:
BETWEEN:
PARAMESHA,
S/O GANESH,
AGED ABUT 42 YEARS,
OCC: COOLIE,
R/O ARASIKOPPA SIGNASC,
PERMANENTLY R/O MANDAGADDE,
THEERTHALLI TALUK,
SHIVAMOGGA DISTRICT.
...CROSS-OBJECTOR
(BY SRI SATISH R. GIRJI, ADVOCATE)
AND:
1. NARAYANAGOWDA S.N.,
S/O NAGAPPAGOWDA,
AGED ABOUT 57 YEARS.
3
2. SMT. SAVITHRAMMA,
W/O SUBBARAYAGOWDA,
MAJOR.
BOTH ARE R/O SIGASE,
ARALIKOPPA, KOPPA TALUK,
CHIKKAMAGALURU DISTRICT
3. THE MANAGER,
ORIENTAL INSURANCE CO. LTD .,
BRANCH OFFICE,
CHIKKAMAGALURU DISTRICT.
...RESPONDENTS
(BY SRI B.S. UMESH, ADVOCATE FORF R3)
THIS MFA.CROB IN MFA NO.6030/2017 IS FILED UNDER
ORDER XLI RULE 22 OF THE CPC AGAINST THE JUDGMENT AND
AWARD DATED 07.04.2017 PASSED IN MVC NO.455/2015 ON THE
FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHIKKAMAGALURU AND MACT AND INTINERATE AT KOPPA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. AND M.F.A.CROB. COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the cross-objector.
2. This appeal and cross-objection are filed challenging
the judgment and award dated 07.04.2017, passed in
M.V.C.No.455/2015, on the file of the II Additional Senior Civil
Judge and JMFC, Chikkamagaluru and MACT, Itinerate at Koppa
('the Tribunal' for short).
3. The factual matrix of the case of the claimant before
the Tribunal is that on 19.06.2010 at about 10.30 a.m., when
the claimant was proceeding by walk on the left side of the
Sigase-Aralikoppa Road, respondent No.1 being the driver of the
jeep drove the said vehicle in a rash and negligent manner and
dashed against him from backside. As a result, he had sustained
fracture injury to his L-1 and injury to his back near bumbar
area. Immediately he was shifted to Highland Hospital,
Mangalore, wherein he took the treatment as an inpatient for a
period of one month and he also took the follow-up treatment.
He was a coolie and suffered permanent disability and hence
could not continue his job. In pursuance of the claim petition,
respondent Nos.1 and 2 were placed exparte. However, the
Insurance Company took the specific defence in the written
statement denying the accident and contended that the case is
registered in collusion between the owner and the claimant and
created the documents and there was a delay of 11 days in
lodging the complaint and afterthought case was registered
against the vehicle belonging to respondent Nos.1 and 2. The
claimant in order to substantiate his claim examined himself as
P.W.1 and examined the doctor as P.W.2 and got marked the
documents at Exs.P.1 to 91 and admission record is marked as
Ex.C.1. The Tribunal after considering both oral and
documentary evidence placed on record, awarded compensation
of Rs.12,27,244/- with 6% interest.
4. Being aggrieved by the judgment and award of the
Tribunal, the present appeal is filed by the Insurance Company
in M.F.A.No.6030/2017, wherein specific contention is taken that
there was a delay of 11 days in filing the complaint. The owner
and the driver of the alleged offending vehicle though served
with notice they remained exparte. Hence, it is clear that it is a
collusive claim and falsely implicated the vehicle afterthought.
The same has not been considered by the Tribunal. The Tribunal
failed to notice that the doctor P.W.2 from Highland Hospital
does not speak about the claimant being treated first at Wenlock
Hospital and about the recording in the wound certificate about
fall from height and hence it is clear that judgment of the
Tribunal is illegal. The Tribunal should have appreciated
Ex.P.91, wherein it is clearly stated as fall from height, but
twisted the facts as hit by jeep. The wound certificate does not
say who corrected the original records and why and it bears no
signature of the person who corrected the wound certificate and
in the wound certificate made an insertion with regard to later
after investigation comes to know about he was hit by jeep, but
failed to take note of Ex.C.1 admission record of Highland
Hospital where the doctors themselves have recorded that fall
from height on 19.06.2010 and also it mentions that initially he
was treated at Wenlock Hospital.
5. The learned counsel in support of his argument that
the vehicle was falsely implicated after 11 days of the accident,
brought to the notice of this Court the judgment of this Court
dated 12.03.2009 passed in M.F.A.No.962/2007, wherein this
Court has observed that in order to receive the compensation
from the Tribunal, the claimants who make it a habit to file false
claim, a message should be sent to such persons and hence
imposed cost also when false claim has been made by playing
fraud on the Court.
6. The learned counsel also brought to the notice of this
Court the judgment of the Apex Court in the case of ORIENTAL
INSURANCE CO. LTD. v. PREMLATA SHUKLA AND OTHERS
reported in 2007 ACJ 1928, regarding relying upon the
document of FIR irrespective of the fact that contents of the
documents have been proved or not.
7. The learned counsel also relied upon the judgment of
this Court in the case of BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD. v. B.C. KUMAR AND ANOTHER
reported in 2010 ACJ 1667, wherein this Court has observed
that history of the accident as given by the claimant is that he
hit road side tree near zoo on Bannerghatta Road and sustained
injuries whereas he has claimed in the claim application that he
was dashed by another vehicle on Pandavapura-Srirangapatna
Road, the document produced by witness of Insurance Company
in this regard contained thumb mark of the claimant. Even the
document evidencing pleading of guilt by the driver was not
marked in evidence and there is no legal evidence to support the
claimant's case that driver pleaded guilty. The Tribunal has to
assess the evidence before it independent of any finding of the
criminal Court.
8. The learned counsel also relied upon the judgment of
this Court passed in M.F.A.No.7025/2011 dated 09.11.2015,
wherein this Court has observed that when involvement of the
insured vehicle in the accident is disputed, it is for the claimant
to place acceptable evidence to prove its involvement and to
prove that the accident arose out of use of the insured vehicle.
If the claim is based on fault, then negligent user of the vehicle
also requires to be proved. Fraudulent claims are on the rise,
hence, it is necessary to state that, filing of complaint to the
police or filing of charge-sheet by the police, by itself, is no proof
of involvement of the vehicle in the accident.
9. The learned counsel referring these judgments would
contend that there was a delay of 11 days in filing the complaint
and history at the first instance was given as fall from height and
afterthought indulged in creation of document in collusion and
hence the claim cannot be sustained.
10. Per contra, the learned counsel for the claimant
would contend that though specific defence was taken in the
written statement with regard to collusion is concerned, the
same has not been proved by examining any of the witnesses.
The learned counsel brought to the notice of this Court that the
injured had suffered injury to bumbar portion and lost sensation
in respect of limbs and hence could not file the complaint
immediately. Apart from that, explanation is given in the
complaint that the insured had promised to meet the expenses,
but he did not. In the absence of contra evidence as against the
evidence of P.W.1, the very contention of the Insurance
Company cannot be accepted. The learned counsel submits that
the Tribunal also while allowing the claim petition taken note of
the evidence on record and case of the claimant is not disproved
by the Insurance Company by examining any of the witnesses
and hence the very contention of the Insurance Company cannot
be accepted. The learned counsel would contend that the
judgments which have been relied upon by the learned counsel
appearing for the Insurance Company are not applicable to the
facts of the case on hand. Hence, it does not require
interference.
11. Having heard the respective learned counsel and also
on perusal of the material available on record, the points that
arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error
in fastening the liability on the Insurance
Company?
(ii) Whether the Tribunal has committed an error
in entertaining the claim petition against the
Insurance Company and whether it requires
interference of this Court?
(iii) Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation?
(iv) What order?
Point Nos.(i) and (ii):
12. Having heard the respective counsel and also on
perusal of the material on record, it discloses that the accident
was occurred on 19.06.2010 at about 10.30 a.m. and the injured
was taken to the hospital on the same day and he was admitted
to the Highland hospital and on perusal of Ex.C1-Admission
Record it discloses that history was given as fall from height,
loss of sensation in both lower limbs from the hip and no history
of loss of consciousness and wherein also it was mentioned that
patient was treated in Wenlock hospital and hence, it is clear
that immediately after the accident, the injured was taken to the
Wenlock hospital and later he came to Highland hospital on
20.06.2010 but the claimant has not placed any document with
regard to that he took treatment at Wenlock Hospital on
19.06.2010 itself since the accident was occurred on 19.06.2010
at 10.30 a.m. and the admission record of Highland hospital
discloses that he was admitted to the said hospital on
20.06.2010 at 13.27 p.m.
13. In order to overcome the admission that it was a
case of fall from height, no witnesses are examined by the
claimant before the Tribunal to substantiate that he had suffered
the injuries on account of involvement of jeep in an accident. It
is also important to note that wound certificate is also marked
and no doubt on perusal of wound certificate, history is
mentioned that due to fall on 19.06.2010 at 10.30 a.m. said by
patient but after investigation by the police, it was said to be hit
by jeep near Sigase Road hence, it is clear that the patient has
given the history as it is a case of fall but later as per the police
records it is the case of an accident and the said history is
mentioned in Ex.P91 that is certified copy of the wound
certificate. It is also important to note that IMV report discloses
that vehicle was inspected on 06.07.2010 and no damages were
found at the time of the inspection of the vehicle. When the
material discloses that it was a case of fall from height, the same
could have been explained by the claimant when he was
examined as witness. The documentary evidence is very clear
that the history was given by the patient himself that fall from
height.
14. It is also important to note that in the cross-
examination of PW1 he categorically admits that normally he
used to go to plantation work in the morning 7.00 to 8.00 but on
the date of the accident, he took the plantation work of one
Sudhakargowda at 10.00 a.m. and also admits that the work
ought to have been done in the month of April but the same was
done in the month of June on account of lack of labours. It is
elicited that he cannot give any topography of place of accident
but he claims that the accident was occurred in front of house of
Razaq Saheba but suggestion was made that accident place was
mentioned that on the back side of the house of Razaq Saheba
but he says that he has not aware of the same but on perusal of
the mahazar, it is mentioned that on the road which is leading
by the side of the house of Razaq Saheba not in front of the
house of Razaq Saheba and all these materials are not
considered by the Tribunal while considering the involvement of
the vehicle in the accident.
15. The learned counsel appearing for the respondent-
claimant would contend that no specific defence was taken in the
written statement and also not adduced any defence evidence.
The said contention cannot be accepted because in paragraph 9
of the written statement specifically pleaded that case has been
registered colluding with each other i.e., by the owner and the
claimant. It is also important to note that owner and driver of
the vehicle have been placed exparte. First of all, there was a
delay of 11 days in lodging the complaint. Immediately after the
accident, the injured was taken to the Wenlock hospital wherein
also no intimation was given to the police and in the Highland
hospital also no intimation was given to the police and no MLC
was registered and only an after thought, after 11 days of the
incident, the complaint was given and while giving the complaint
also it was mentioned that the owner had assured to meet the
expenses but he did not and that is the only explanation given
by the injured in the complaint but no doubt, in the complaint he
has stated that in view of the assurance given by the owner, he
has given the history that he fell down and what made him to
give such history is also not explained. If really met with an
accident involvement of the jeep, he would have given the very
same history even owner had assured him to meet the medical
expenses but the material on record discloses that both are
colluded with each other. I have already pointed out that the
claimant has not explained with regard to the history which was
given earlier by himself i.e., fall from height and later on, the
police have changed the history.
16. In the wound certificate as rightly pointed out by the
learned counsel for the insurance company that the sentence is
inserted in the wound certificate that the police after the
investigation said that jeep hit him and no doubt, insurance
company has not examined the IO but Court can take note of
the answer elicited from the mouth of PW1 that he is unable to
mention the topography of place of accident and apart from that
Ex.C1 clearly discloses that it was a case of fall from height and
the same has not been explained by the claimant. When such
material available before the Court, fraud and justice should not
dwell together and the Tribunal ought to have taken note of the
documentary evidence available on record and the documentary
evidence prevails over the oral evidence and the same excludes
the oral evidence and same has not been considered and the
Tribunal has committed an error in fastening the liability on the
insurance company in coming to the conclusion that the injured
met with an accident and jeep hit him, as a result he has
sustained injuries. Hence, it requires to set aside the judgment
and award of the Tribunal passed against the Insurance
Company.
17. It has to be noted that after 11 days of the accident,
an after thought, a vehicle was implicated. The Tribunal has
issued notice against the driver as well as owner of the vehicle
and they did not choose to appear before the Court to contest
the matter hence, it is clear that there is a force in the
contention of the counsel for the insurance company that all of
them have colluded with each other in order to make wrongful
gain. It is the bounden duty of the claimant to first prove his
case with regard to involvement of the vehicle in the accident
and the suspicious circumstances has not been explained by the
claimant. However when the insured did not dispute the
accident, he kept quite and also IMV does not discloses any
damages, the principles laid down in the judgments referred
supra regarding the insured did not dispute the accident and
when the material discloses that there is a collusion between the
owner as well as claimant that too after 11 days implicated the
vehicle and this Court also in the judgment referred supra
observed in MFA No.962/2007 that when a false claim is made
before the Court, it is the duty of the Court to see that when the
claimant who make it as a habit to file a false claim in order to
receive the compensation from the Tribunal, imposed the cost on
the claimant. In the case of B.C. KUMAR AND ANOTHER
referred supra, this Court held that document evidencing merely
pleading of guilty by the driver was not a basis for making claim
of compensation. When the material discloses that it is a case of
fall from height and sustained injuries and the claim that jeep
involved in the accident is not disputed by the owner, the
collusion is clear between the owner as well as the claimant,
hence, the said compensation awarded by the Tribunal has to be
recovered from the insured and not from the Insurance
Company and fraudulent claims cannot be encouraged by
directing the Insurance Company to pay the compensation.
Hence, it is a clear case to direct the insured to pay the
compensation amount as the insured sails along with the
injured. Hence, judgment and award of the Tribunal requires to
be modified. Hence, Point Nos.1 and 2 are answered as
affirmative.
Point No.(iii):
18. Having heard the respective counsel appearing for
the parties and also on perusal of the material on record
particularly, the documents of wound certificate, disability
certificate and also photographs it shows that the injured was an
inpatient for a period of 30 days and nature of injuries are also
very clear that he had suffered fracture of L1 and case of
complete paraplegia with bed ridden and in the cross-
examination, the injured also stated that he had L1 fracture with
complete paraplegia and it is also his evidence that he was
operated on 20.06.2010 with posterior stabilization and
decompression and advised for physiotherapy and he was
discharged on 02.07.2010 and it is suggested that the disability
certificate was issued in order to meet the patient and said
suggestion was denied.
19. The injured had suffered the fracture of L1 and no
sensation in the lower limb and disability assessed by the doctor
is 90% and the Tribunal also considered the disability of 90%,
however while calculating the loss of income, taken the income
of Rs.6,000/- and it was an accident of the year 2010 and the
notional income for the year 2010 is Rs.5,500/- and not awarded
any future loss of income and having considered his age as 35
years, 40% has to be added as future prospectus and having
taken income of Rs.5,500/- adding future prospectus of 40% it
comes to Rs.7,700/- (5,500x40%) and applying the relevant
multiplier of 16 and taking the disability of 90%, the
compensation on the head loss of income comes to Rs.13,30,560
(7,700 x 12 x 16 x 90%).
20. The Tribunal has awarded an amount of Rs.50,000/-
towards pain and sufferings and having taken note of nature of
injury and period of treatment, it is appropriate to enhance the
same to Rs.1,00,000/- as against Rs.50,000/-.
21. The Tribunal has awarded an amount of Rs.65,444/-
towards medical expenses and the same is based on the
documentary evidence hence, it does not require interference.
22. The Tribunal has awarded an amount of Rs.50,000/-
towards loss of amenities and the same is also requires to be
enhanced to Rs.1,00,000/- as against Rs.50,000/- since he has
to lead rest of his life with the disability of 90%.
23. The Tribunal has awarded an amount of Rs.25,000/-
towards conveyance, attendance charges, food and nourishment
and having considered the fact that the accident of the year
2010, the same is just and reasonable.
24. Hence, in all, the claimant is entitled for
Rs.16,21,000/- as against Rs.12,27,244/-. Thus, the Cross
Objection filed by the claimant deserves to be allowed and this
point is answered accordingly.
Point No.(iv):
25. In view of the discussions made above, this Court
pass the following:
ORDER
(i) MFA No.6030/2017 and MFA
Crob.No.158/2017 are allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 07.04.2017 passed in
M.V.C.No.455/2015 is modified granting
compensation of Rs.16,21,000/- as against
Rs.12,27,244/- with interest at 6% per annum
on the enhanced compensation amount from
the date of petition till deposit.
(iii) The liability of the insurance company is
exonerated and insured is directed to pay the
compensation amount with interest within six
weeks from today.
(iv) The amount in deposit made by the Insurance
Company is ordered to be refunded to the
Insurance Company, on proper identification.
(v) The Registry is directed to send the records to
the concerned Tribunal, forthwith.
Sd/-
JUDGE
MD/SN
