Karnataka High Court
Sri H M Karun vs M/S Sbi General Insurance on 19 June, 2023
Bench: G Basavaraja
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NC: 2023:KHC:21145
MFA No. 5475 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 5475 OF 2015 (MV-I)
BETWEEN:
SRI H M KARUN
S/O H P MANOHAR
AGED ABOUT 25 YEARS
R/O NO. 306, 4TH CROSS
4TH MAIN, D GROUP LAYOUT
SRIGANDHADAKAVALU
BENGALURU-560091
...APPELLANT
(BY SRI.H. S. SUHAS, ADVOCATE)
AND:
1. M/S SBI GENERAL INSURANCE
CO LTD.,
Digitally signed REGISTERED OFFICE AT "NATARAJ"
by HARSHITHA B
Location: High NO.101, 201 AND 301,
Court of
Karnataka JUNCTION OF WESTERN EXPRESS HIGHWAY,
AND ANDHERI KURLA ROAD,
ANDHERI EAST
MUMBAI-400069.
2. SRI RAVI POOJARI
MAJOR
S/O SRI NAKARA POOJARI
R/O SHIVAPURA
MALLEBETTU,
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MFA No. 5475 of 2015
KARKALA TALUK
UDUPI DISTRICT-581163.
...RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R1; R2 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:10.06.2015 PASSED IN MVC
NO.1551/2014 ON THE FILE OF THE JUDGE, COURT OF SMALL
CAUSES & XXVI ACMM, (SCHH-09), MACT, BANGALORE,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Appellant/claimant has preferred this appeal against
the judgment and award dated 10.06.2015 passed by the
Small Causes and Motor Accident Claims Tribunal,
Bengaluru, in MVC No.1551/2014.
2. The parties are referred to as per their ranks before
the tribunal.
3. The brief facts of the case are that on 27.06.2013 at
about 7.00 p.m. when the petitioner was proceeding in
two wheeler bearing registration No.KA-02-ET-9838, near
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MFA No. 5475 of 2015
Punith Forum, on Bengaluru-Mysore Road, Bidadi, a canter
bearing registration No.Ka-20-C-4166 came in a rash and
negligent manner and dashed to the motor bike, in which
the petitioner was proceeding, due to which the petitioner
fell down and sustained injuries. The petitioner was
hospitalized and taken treatment as an inpatient in the
hospital and incurred huge medical expenses. The
petitioner was working as an accountant in Professional
Telecom and earning Rs.12,000/- per month. Due to the
accidental injuries, petitioner is permanently disabled, lost
his earning capacity and put to irreparable loss and
hardship. The accident was due to the rash and negligent
driving of the offending canter by its driver. The
respondents, being the owner and insurer of offending
canter, are liable and responsible to pay compensation to
the petitioner. On all these grounds, sought for allowing
this appeal.
4. To substantiate the claim of the petitioner, 3
witnesses were examined as PW1 to PW3. 20 documents
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MFA No. 5475 of 2015
were marked as Exs.P-1 to P-20. On closure of
petitioner's side evident, one Sadananda is examined as
RW1. On hearing the arguments on both sides, the
Tribunal has dismissed the claim petition. Being aggrieved
by this judgment and award passed by the Tribunal, the
appellant/claimant has preferred this appeal.
5. Learned counsel appearing on behalf of appellant has
submitted his arguments that Tribunal has not properly
appreciated the evidence on record in a proper and
perspective manner. After thorough investigation the IO
has submitted the charge sheet against the driver of the
offending vehicle for the commission of offences
punishable under Section 279, 338 of IPC and Section 187
of Motor Vehicles Act. The same is not challenged by the
other side. Respondents have not placed any acceptable
legal evidence before the Tribunal to discard the contents
of the charge sheet. However, the Tribunal has dismissed
the claim petition which is contrary to law and facts. On
all these grounds, sought for allowing this appeal.
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MFA No. 5475 of 2015
5. As against this, Sri.B.Pradeep, learned counsel for
the respondent/insurance company has submitted his
arguments that Tribunal has properly appreciated the
evidence on record in accordance with law and facts. In
the evidence of Investigating Officer - RW1 has clearly
stated that he has not received MLC from the concerned
hospital. Hence, he has not registered MLC but after
receiving the complaint only the IO started investigation
and submitted the charge sheet. That there is 1 month
delay in filing the complaint. That there are no grounds to
interfere with the impugned judgment and award passed
by the Tribunal. On all these grounds, sought for
dismissal of this Appeal.
6. Having heard the arguments of both sides and on
perusal of the records, the following points would arise for
consideration:
(1) Whether the claimant/appellant has made
out grounds to interfere with the impugned
judgment and award?
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MFA No. 5475 of 2015
(2) What order/award?
7. My answer to the above points are as under:
(1) Affirmative
(2) As per final order
8. I have carefully gone through the materials placed before
this Court. On the basis of the complaint Ex.P-1 filed by the
complainant - H.P.Manohar, who is the father of the injured,
Bidadi police have registered the case in Crime No.272/2013
against the driver of the vehicle bearing No.KA 20 C 4166 for
the commission of offences punishable under Section 279 and
337 of IPC and Section 187 of MV Act and submitted the FIR to
the court. Thereafter police have rushed to the spot and
conducted spot panchanama on 26.02.2013 in the presence of
panchas as per Ex.P-2. Thereafter, IO has recorded the
statement of witnesses and obtained MV report as per Ex.P-4
and obtained wound certificate - Ex.P-5 and discharge
summary - Ex.P-6 and after thorough investigation the IO has
submitted the charge sheet as per Ex.P-3 against the driver of
the offending vehicle for the offences punishable under Section
279 and 337 of IPC and Section 187 of MV Act.
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MFA No. 5475 of 2015
9. Respondent No.1 summoned the IO and examined him as
RW1. RW1 has clearly deposed as to the filing of charge sheet
against the accused for the alleged commission of offences, but
he has deposed that he has not received any MLC regarding
admission of petitioner in the hospital. Hence, this witness is
treated as hostile witness and with the permission of the Court
he was cross examined. During the cross examination made by
the petitioner he has clearly admitted that after registration of
the case he had sent an official to the hospital where the
petitioner was admitted and verified the documents at the
hospital relating to the admission of the petitioner. Further he
has admitted that he has issued notice to the owner of the
offending vehicle under Section 133 of the MV Act and owner
has given reply for the said notice. Further he has deposed
that the driver of the offending vehicle has pleaded guilty
before the JMFC Court, Ramanagara and paid the fine amount.
10. A perusal of this evidence of RW1 it is crystal clear that
after filing the charge sheet the driver of the offending vehicle
appeared before the jurisdictional Magistrate and pleaded guilty
of the alleged offences. Though the driver of the offending
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MFA No. 5475 of 2015
vehicle has pleaded guilty for the alleged commission of
offences the Tribunal has objected the claim of the claimant on
the ground that the MLC was not sent to the police and delay in
filing the complaint. A perusal of Ex.P-5 - wound certificate
issued by the BGS Hospital reveals that H.M.Karun,
S/o.Manohar is admitted to the hospital accompanied by 108
Ambulance with the history of road traffic accident on
27.06.2013. The petitioner got discharged against the medical
advise and admitted to the KIMS Hospital and Research Centre.
Ex.P-6 - discharge summary reveals that he is admitted to the
hospital on 28.06.2013 and the date of operation was
01.07.2013 and date of discharge was 02.07.2013. This
discharge summary also reveals that petitioner admitted to the
hospital with the history of road traffic accident on 27.06.2013.
When the petitioner has admitted to the hospital with the
history of road traffic accident it is the duty of the concerned
medical officer to register the case as Medico Legal Case and
intimation has to be given to the jurisdictional police but he has
not done so. The father of the petitioner Manohar has lodged a
complaint to the police on 26.07.2013. On the basis of this
complaint the SHO of Bidadi Police have registered the case in
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MFA No. 5475 of 2015
Crime No.272/2013 against the driver of the offending vehicle
for the offences punishable under Section 279 and 337 of IPC
and Section 187 of MV Act. In Column No.3(c) of the FIR, it is
clearly explained as to the delay in filing the complaint, which is
not considered by the Tribunal. In this regard I have gone
through the judgment of Hon'ble Apex Court in the case of
RAVI v. BADRINARAYAN & ORS. reported in 2011 ALL SCR
532, wherein in para 21 of this judgment the Hon'ble Apex
Court has observed as under:
"21. The purpose of lodging the FIR in such type of
cases is primarily to intimate the police to initiate
investigation of criminal offences. Lodging of FIR
certainly proves factum of accident so that the victim is
able to lodge a case for compensation but delay in doing
so cannot be the main ground for rejecting the claim
petition. In other words, although lodging of FIR is vital
in deciding motor accident claim cases, delay in lodging
the same should not be treated as fatal for such
proceedings, if claimant has been able to demonstrate
satisfactory and cogent reasons for it. There could be
variety of reasons in genuine cases for delayed
lodgment of FIR. Unless kith and kin of the victim are
able to regain a certain level of tranquility of mind and
are composed to lodge it, even if, there is delay, the
same deserves to be condoned. In such circumstances,
the authenticity of the FIR assumes much more
significance than delay in lodging thereof supported by
cogent reasons."
11. PW1 has deposed in his evidence regarding the delay
in filing the complaint. Respondent No.2 has not appeared
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MFA No. 5475 of 2015
before the Court and he was placed exparte. Respondent
No.1-insurance company has not placed any acceptable
legal evidence before the Tribunal to discard the evidence
placed by the petitioner. Instead of that respondent -
insurance company has examined the IO - Sadananda as
RW1, who has supported the case of the petitioner.
Respondent - insurance company has not taken any legal
steps against the IO who has submitted the charge sheet
against the driver of the offending vehicle.
12. Considering the evidence of petitioner and also
keeping in mind the above decision of Hon'ble Apex Court,
I am of the considered opinion that the petitioner has
proved that accident occurred due to rash and negligent
act on the part of the driver of the offending vehicle
bearing registration No.KA-20-C-4166 and as result the
petitioner has sustained injuries. Tribunal has not properly
appreciated the evidence on record in accordance with law
and facts in this regard.
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MFA No. 5475 of 2015
13. With regard to the quantum of compensation is
concerned, the petitioner H.M.Karun is examined as PW1
and he has deposed in his evidence that after the accident
he was admitted to the BGS Hospital, Uttarahalli Road,
Kengeri, Bangalore, wherein x-rays were taken and
treatment was given to him and noticed that there was
fracture of dislocation of mandible. Thereafter, he was
shifted to KIMS Hospital, V.V.Puram, Bangalore and
admitted as inpatient, wherein x-rays were taken and he
underwent operation. He was admitted as inpatient from
27.06.2013 to 02.07.2013 and took treatment for 6 days
as inpatient. Thereafter, he was discharged on 02.07.2013
with doctor advice to take follow up treatment and to take
bed rest for 6 months. Accordingly, he took treatment.
Further he has deposed that prior to the accident he was
hale and healthy, the injuries caused to him was grievous
in nature and caused permanent disability to him. Prior to
the accident he was working as an accountant in
Professional Telecom, Vijayanagar, Bangalore and drawing
a salary of Rs.12,000/- per month.
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MFA No. 5475 of 2015
14. PW2 - G.Santosh has deposed in his evidence that he
is running Professional Telecom Firm at Rajajinagar,
Bangalore and also that petitioner was working as
accountant in his firm till 26.06.2013 and he has paid the
salary of Rs.15,000/- per month by way of cash to
H.M.Karun.
15. PW3 - Dr.Riyaz Ulla has deposed in his evidence as to
the treatment extended to the petitioner and also deposed
as to the disability of the petitioner. Ex.P-5 is the wound
certificate issued by the BGS Global Hospital which reveals
that petitioner has sustained fracture of dislocation of
mandible and doctor has opined that the injured are
grievous in nature. Ex.P-6 - discharge summary issued by
the KIMS Hospital & Research Centre, which reveals that
petitioner was admitted to the hospital on 28.06.2013 and
date of operation was 01.07.2013 and date of discharge
was 02.07.2013. The nature of injuries is also explained in
it. Ex.P-7 is the inpatient bill issued by the BGS Global
Hospital. Exs.P-8 and P-9 are the receipts and bills
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MFA No. 5475 of 2015
produced by the petitioner. Ex.P-10 is the certificate
issued by the Professional Telecom, in which it is stated
that the petitioner was getting a salary of Rs.15.000/- per
month. Ex.P-11 is the SSLC markscard of the petitioner.
B.Com. markscards are also produced. Ex.P-17 is the
medical records maintained by the KIMS Hospital. Ex.P-18
are is the x-ray of the petitioner.
16. A perusal of the entire evidence placed on record it is
crystal clear that PW3 the treated doctor has not issued
the wound certificate, but he has deposed as to the 10%
disability to the whole. It is fairly submitted by the
appellant's counsel that now also the petitioner is working
in other private sector. Therefore, petitioner is not entitled
for compensation of loss of future income.
17. Considering the nature of injures, pain and agony,
period of taking treatment as mentioned, it is just and
proper to award the compensation as under:
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MFA No. 5475 of 2015
Sl.
Particulars Amount
No.
1. Injury, pain and agony 25,000/-
2. Loss of earning during 15,000/-
treatment
3. Attendant, food & 15,000/-
nourishment, conveyance,
transportation charges
4. Loss of amenities and 20,000/-
unhappiness
5. Medical bills 1,00,000/-
TOTAL 1,75,000/-
18. In view of the above, I proceed to pass the following:
ORDER
(a) The appeal is allowed.
(b) The judgment and award dated
10.06.2015 passed by the Court of Small
Causes and Motor Accident Claims
Tribunal, Bengaluru in MVC No.1551/2014
is set aside. The petitioner is entitled to
total compensation of Rs.1,75,000/-
with interest at the rate of 6% per annum
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MFA No. 5475 of 2015
from the date of claim petition till
realization.
(c) Respondent Nos.1 and 2 being the
insurance company and owner of the
vehicle, are jointly and severally liable to
pay the compensation.
(d) The insurer is directed to deposit the
compensation along with interest at the
rate of 6% per annum from the date of
claim petition till realization.
(e) The insurer is directed to deposit the
compensation amount within a period of
one month from the date of receipt of
certified copy of this judgment.
(f) After depositing the amount,
appellant/petitioner is permitted to
withdraw the entire amount as the matter
is old one.
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MFA No. 5475 of 2015
(g) Advocate fee is fixed at Rs.2,000/-.
(h) Draw an award accordingly.
Sd/-
JUDGE
DR
