Karnataka High Court
Shankar S/O Gireppa vs Basawaraj And Ors on 22 November, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2023:KHC-K:8753
MFA No. 200922 of 2022
C/W MFA No. 201318 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
MISCL. FIRST APPEAL NO.200922/2022 (MV-I)
C/W.
MISCL. FIRST APPEAL NO.201318/2022
IN MFA NO. 200922 OF 2022.
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
THROUGH ITS
DIVISIONAL MANAGER,
CENTURY COMPLEX,
Digitally signed
SUPER MARKET,
by LUCYGRACE KALABURAGI,
Location: HIGH NOW REPRESENTED BY ITS,
COURT OF AUTHORIZED SIGNATORY.
KARNATAKA
...APPELLANT
(BY SRI S.S. ASPALLI, ADVOCATE)
AND:
1. SHANKAR
S/O GIREPPA,
AGE: 53 YRS, OCC: HOTEL,
R/O MAHAGAON CROSS,
-2-
NC: 2023:KHC-K:8753
MFA No. 200922 of 2022
C/W MFA No. 201318 of 2022
TQ. AND DIST. KALABURAGI,
NOW R/O BANASHANKARI GALLI,
RAJESHWAR,
TQ. BASAVAKALYAN,
DIST. BIDAR-585327.
2. BASAWARAJ
S/O BEERANNA,
AGE: MAJOR, OCC: PVT. SERVICE,
R/O H.NO.53, MOGALA
TALUKA CHITTAPUR,
DIST. KALABURAGI-585211.
3. SHARANAPPA
S/O SHANKERAPPA,
AGE: MAJOR OCC: PVT. SERVICE
R/O SIDHARUD COLONY,
KAPNOOR,
TQ. AND DIST. KALABURAGI -585101.
...RESPONDENTS
(BY SRI SANJEEV PATIL, ADVOCATE FOR R1;
R2-SERVED; R3-NOTICE DISPENSED WITH.)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE
RECORDS AND SET ASIDE THE JUDGMENT AND AWARD
DATED 05.01.2022 IN MVC NO.1108/2018 PASSED BY
THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT,
KALABURAGI BY ALLOWING THE ABOVE APPEAL.
IN MFA NO. 201318 OF 2022.
BETWEEN:
SHANKAR S/O GIREPPA
AGE: 59 YEARS, OCC: HOTEL BUSINESS,
-3-
NC: 2023:KHC-K:8753
MFA No. 200922 of 2022
C/W MFA No. 201318 of 2022
R/O MAHAGAON CROSS,
TQ. AND DIST. KALABURAGI,
NOW RESIDING AT BANASHANKARI GALLI,
RAJESHWAR,
TQ. BASAVAKALYAN,
DIST. BIDAR
...APPELLANT
(BY SRI SANJEEV PATIL, ADVOCATE)
AND:
1. BASAWARAJ
S/O BEERANNA,
AGE: MAJOR, OCC: PVT. SERVICE,
R/O H.NO. 53, MOGALA,
TQ. CHITTAPUR,
DIST. KALABURAGI 585201.
2. SHARANAPPA
S/O SHANKRAPPA,
AGE: MAJOR, OCC: PVT. SERVICE,
R/O SIDHARUD COLONY, KAPNOOR,
TQ. AND DIST. KALABURAGI- 585105.
3. UNITED INDIA INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
CENTURY COMPLEX, SUPER MARKET,
KALABURAGI-585102.
...RESPONDENTS
(BY SRI S.S. ASPALLI, ADVOCATE FOR R3;
R1-SERVED; R2-NOTICE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE
ENTIRE LOWER COURT RECORDS AND MODIFY THE
JUDGMENT AND AWARD DATED 05.01.2022 PASSED BY
THE LEARNED SENIOR CIVIL JUDGE AND MACT,
-4-
NC: 2023:KHC-K:8753
MFA No. 200922 of 2022
C/W MFA No. 201318 of 2022
CHITTAPUR IN MVC NO.1108/2018 BY ENHANCING THE
COMPENSATION AMOUNT AS PRAYED FOR.
THESE APPEALS, COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.200922/2022 is filed by the appellant-
Insurance Company aggrieved by the judgment and award
dated 05.01.2022 passed in MVC No.1108/2018 by the
Principal Senior Civil Judge and CJM, Kalaburagi,
Kalaburagi District ('Tribunal'), by which, the Tribunal
while partly allowing the claim petition filed by the
claimant, granted compensation of Rs.3,24,000/- and
directed the appellant-Insurance Company to pay the
same with interest at 6% per annum. MFA
No.201318/2022 is filed by the appellant-claimant seeking
enhancement of compensation awarded as above.
2. Brief facts of the case are that:
NC: 2023:KHC-K:8753
a) On 12.03.2018 at about 6:00 p.m., when
claimant was waiting for his friend Shivanand near the
hotel belonging to one Shamappa Kurikota, a driver of
Mahindra Bolero vehicle bearing registration No.KA-29/M-
4415 drove it in rash and negligent manner and dashed
against the appellant-claimant, due to which he fell down
and sustained grievous injuries. He was shifted to
Basaveswara Hospital, Kalaburagi and thereafter shifted to
Chandan Neuro Science Hospital Solapur for higher
treatment and he claims to have spent an amount of
Rs.3,00,000/- towards his treatment. Thereupon the
claimant filed claim petition under Section 166 of M.V. Act
before the Tribunal seeking compensation of
Rs.31,00,000/- on the premise that he was doing hotel
business and was earning Rs.20,000/- per month. Due to
accident and injuries suffered he rendered disabled
affecting his earning ability and carrying out his regular
activities.
NC: 2023:KHC-K:8753
b) On receipt of summons respondent No.3-
appellant Insurance Company appeared through its
counsel and contested the matter. In statement of
objections, it denied the petition averments, age, mode
and manner of accident and also denied occupation of the
claimant. It was contended that the accident did not occur
on account of negligence on the part of Mahindra Bolero
vehicle. It was also contended that the driver of the said
vehicle did not possess valid Driving License and that
there was violation of terms and conditions of the policy.
It was further contended that the claim made is exorbitant
and sought for dismissal of the petition.
c) The Tribunal based on the pleadings, framed
issues and recorded evidence. Claimant examined himself
as PW1, examined the Doctor as PW2 and has exhibited
14 documents as Exs.P1 to P14. While two witnesses
have been examined on behalf of Insurance Company as
RW1 and RW2 and exhibited Insurance Policy as Ex.R1.
NC: 2023:KHC-K:8753
d) On appreciation of pleadings and evidence, the
Tribunal partly allowed the petition awarding
compensation of Rs.3,24,000/- with interest at 6% per
annum from the date of petition till realization.
Challenging the said judgment and award, the Insurance
Company and the Claimant filed their appeals respectively
seeking their respective prayers.
3. Sri S.S. Aspalli, learned counsel for appellant-
Insurance Company vehemently submits that the Tribunal
failed to appreciate the contents of Ex.P4 - Wound
Certificate, wherein, while recording the history of the
injured-claimant there is a reference of he falling from the
bike on 12.03.2018 and sustaining the injuries. He also
submits that there is no whisper in the Wound Certificate
with regard to involvement of the Bolero Jeep. Thus, he
submits the said document alone is sufficient to hold that
the entire case is brought up only for the purpose of
making the claim. He submits when FIR at Ex.P1 read in
the light of contents of Ex.P4 the falsity of the claim made
NC: 2023:KHC-K:8753
by the claimant stands further exposed. In that he
submits the contents of FIR reveal that on 12.03.2018 at
6:10 p.m., when the injured was standing near hotel of
one Shamappa Kurikota by parking his bike on the side of
road, Bolero Jeep driven by its driver came and hit him
and thereafter the driver of the jeep had left the jeep and
ran away from the spot. He submits that the
improvement in the version of the claimant is result of
after thought and deliberations. Thus, referring to these
two documents, learned counsel vehemently submits that
false cases of this nature shall not be encouraged. He
submits this is a fit case to be dismissed at threshold and
as there is material sufficient enough to draw an inference
of false case having been fastened against the driver of
the jeep and the Insurance Company.
4. Learned counsel Sri Sanjeev Patil appearing for
the appellant-claimant on the other hand submits that
there is no falsity or abnormality in the contents of FIR or
in the contents of Wound Certificate. He submits, the fact
NC: 2023:KHC-K:8753
that the claimant suffered injuries involving the vehicle is
not in dispute. He submits the very first information which
was filed by the son of the claimant as per the complaint
at Ex.P1 would state in detailed manner in which the
accident has taken place and no abnormality can be found
therein. He submits that the Tribunal has taken note of
these aspects of the matter and has come to the right
conclusion by holding that the accident in question has
occurred on account of rash and negligent driving of the
jeep by its driver. Hence, seeks for dismissal of the
appeal filed by the Insurance Company.
5. As regards the claim for enhancement of the
compensation is concerned, learned counsel submits that
the Tribunal has grossly erred in assessing disability at 6%
even though the PW2 - Doctor has opined the same at
35%. He also submits that the grant of compensation
under other heads is also meager, which requires to be
enhanced.
- 10 -
NC: 2023:KHC-K:8753
6. In response thereof, learned counsel for
Insurance Company submits that when the case itself is a
false claim, it cannot be entertained. However, he submits
that the compensation awarded by the Tribunal appears to
be just and proper, which requires no interference.
7. Heard the learned counsel for the parties and
perused the records.
8. The ground of a false case being foisted by the
claimant in collusion with the Police against the owner of
the jeep and Insurance Company is raised for the first
time in this appeal. A perusal of the statement of
objections filed by the appellant-Insurance Company
before the Tribunal reveals that there is not even a
whisper with regard to falsity of the complaint or of the
incident of the accident. Needless to state that in the
absence of pleadings any amount of proof is of no avail.
Be that as it is, even on perusal the contents of FIR which
was registered on 13.03.2018 at about 12:00 p.m., would
- 11 -
NC: 2023:KHC-K:8753
reveal that the accident in question had occurred on
12.03.2018 at about 6:30 p.m. Based on the details of
the complaint FIR was filed and after investigation charge-
sheet has been filed against the driver of offending
vehicle. IMV Report at Ex.P6 reveals that the motor
vehicle had sustained damages and there is no visible
damage to the Bolero Jeep. The Insurance Company has
not led any evidence to discredit or impeach this material
evidence placed on record by the claimant. If the case
was falsely foisted as contended on behalf of the
Insurance Company's in this appeal, nothing prevented
the Insurance Company to have called for the author of
Ex.P3 or the Investigating Officer, who had filed the
charge-sheet and examine the veracity of the same. No
attempt in this regard is made. As already noted there is
not even a whisper in the statement of objections
regarding falsity of the complaint.
9. At this juncture, learned counsel Sri S.S. Aspalli
submits that when the summons are issued by the
- 12 -
NC: 2023:KHC-K:8753
Tribunal only copy of claim petitions are forwarded and no
documents enclosed to the same are made available and it
is for this reason normally Insurance Companies it difficult
to file detail statement of objections. The said submission
cannot be accepted for the reason that if defendant or
respondent is in need of better particulars, provisions are
provided under the Code of Civil Procedure to seek for the
better particulars or bring it to the notice of the Tribunal
about non-availability of the necessary documents or
information enabling them to file statement of objections.
No attempt of this nature is made in this case either. In
the absence of pleadings, evidence and the material
placed on record by the Insurance Company, the
pleadings, evidence and material placed on record by the
claimant cannot be disbelieved as the trial in the case of
this nature is based on the preponderance of probabilities.
Even if there appears to be some suspicion, unless the
same is established and rebutted in the manner known to
law, it cannot be held that the case is a false case. As
- 13 -
NC: 2023:KHC-K:8753
such, the grounds now urged in the appeal by the
Insurance Company cannot be countenanced.
10. As regards the claim for enhancement is
concerned, the accident in question has resulted in injuries
to the claimant. As per Ex.P4 - Wound Certificate, the
claimant has sustained the following injuries:
a) Extra - axid haemotoma
b) Sub acquired hemorrhage
11. The Disability Certificate at Ex.P10 reveals that
the Doctor has assessed the cumulative disability
sustained by the claimant in the accident is at 35% to the
whole body. The Tribunal taking consideration of the
same has assessed the disability at 6%. In the considered
view of this Court the disability can be reassessed at 12%
in the facts of the matter, as it would be 1/3 of the
disability to the whole body. The notional income of the
claimant assessed by the Tribunal at Rs.11,750/- per
- 14 -
NC: 2023:KHC-K:8753
month and the multiplier applied at '9' require no
modification.
12. Calculated as above, the claimant is entitled to
the compensation under the head loss of future income
due to disability.
11,750/- x 12 x 12% x 9 = Rs.1,52,280/-
13. The Tribunal has awarded Rs.25,000/- towards
pain and sufferings, the same is enhanced to Rs.50,000/-
by adding Rs.25,000/-. The compensation awarded
towards medical expenses by the Tribunal at
Rs.1,75,911/- is maintained as it is. The Tribunal has
awarded Rs.25,000/- towards diet and attendant charges,
the same is enhanced to Rs.40,000/- by adding
Rs.15,000/-. The Tribunal has awarded Rs.11,750/-
towards loss of income during treatment period, the same
is enhanced to Rs.35,250/- being for a period of 3 months.
The Tribunal has awarded Rs.10,000/- towards loss of
amenities, the same is enhanced to Rs.50,000/-
- 15 -
NC: 2023:KHC-K:8753
considering the nature of injuries sustained by the
claimant.
14. Thus, the claimant is entitled to Rs.5,03,441/-
with interest at 6% per annum from the date of petition till
realization as against Rs.3,24,000/- awarded by the
Tribunal. There will be enhancement of Rs.1,79,441/-.
The impugned judgment and award passed by the Tribunal
is modified accordingly.
15. The appeal in MFA No.200922/2022 filed by the
Insurance Company is dismissed.
16. The appeal in MFA No.201318/2022 filed by the
claimant is partly allowed with the above modification.
17. The appellant - Insurance Company shall pay
the aforesaid compensation amount within a period of 6
weeks from the date of receipt of a certified copy of this
judgment.
- 16 -
NC: 2023:KHC-K:8753
18. The amount in deposit and the TCR be returned
back to the Tribunal forthwith.
The enhanced compensation with interest accrued
thereon be released in favour of the appellant-claimant
immediately after deposit by Insurance Company.
Sd/-
JUDGE
SBS
