Karnataka High Court
The Branch Manager vs Mr. S. Sudeesh on 28 November, 2023
-1-
NC: 2023:KHC:42939
MFA No. 637 of 2016
C/W MFA No. 6563 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.637 OF 2016(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.6563 OF 2015(MV-I)
IN MFA NO.637 OF 2016:
BETWEEN:
MR. SUDEESH S.
S/O K. SUDHAKARAN,
AGED ABOUT 25 YEARS
R/O. V. S. KRIPA, D.NO.1-121/A3(2)
HOSABETTU, NEAR GREEN PITCH
KULAI, MANGALURU-575019.
...APPELLANT
Digitally signed
by VINUTHA B S
Location: HIGH
COURT OF
(BY SMT. C. SONALI, ADVOCATE FOR
KARNATAKA
SRI. K. JEEVAN , ADVOCATE FOR APPELLANT)
AND:
1. MR. DINESH H.K.,S/O KRISHNA
AGED ABOUT 45 YEARS
R/AT D.NO.5-71-1(2)
NIDDEL GOKARNA
KULSHEKAR, MANGALURU -575 005.
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
II FLOOR, RASIK CHAMBERS
-2-
NC: 2023:KHC:42939
MFA No. 637 of 2016
C/W MFA No. 6563 of 2015
OPP:CENTRAL MARKET ROAD
MANGALURU-575 001.
...RESPONDENTS
(BY SRI. DINESH H.K. R1- SERVED;
VIDE ORDER DATED 09/03/2022
SRI. O. MAHESH, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 04.06.2015 PASSED IN
MVC NO.1270/2009 ON THE FILE OF THE 3RD ADDITIONAL
DISTRICT JUDGE & MEMBER, MACT-4, D.K., MANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 6563 OF 2015:
BETWEEN:
THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
II FLOOR,RASIK CHAMBERS,
OPP:CENTRAL MARKET ROAD,
MANGALORE.
BY NATIONAL INSURANCE CO.LTD.,
REGIONAL OFFICE,NO.144,
SUBHARAM COMPLEX,M.G. ROAD,
BANGALORE-560 001.
BY IT'S MANAGER
...APPELLANT
(BY SRI. O. MAHESH, ADVOCATE (VC))
AND:
1. MR. S. SUDEESH
AGE 25 YEARS, S/O K SUDHAKARAN,
R/AT V. S. KRIPA,D.NO.1-121/A3 (2)
HOSABETTU, NEAR GREEN
PITCH,KULAI,MANGALORE-575001.
2. MR. DINESH H. K.
-3-
NC: 2023:KHC:42939
MFA No. 637 of 2016
C/W MFA No. 6563 of 2015
AGE 45 YEARS, S/O KRISHNA,
R/AT D.NO.5-71-1(2)
NIDDEL,GOKARNA,
KULSHEKARA,
MANGALORE-575001
...RESPONDENTS
(BY SMT. C. SONALI FOR
SRI. K. JEEVAN, ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED )
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 4.6.2015 PASSED IN MVC
NO.1270/2009 ON THE FILE OF THE III ADDITIONAL
DISTRICT JUDGE, MEMBER, MACT- 4, D.K., MANGALURU,
AWARDING A COMPENSATION OF RS.2,69,000/-
WITH INTEREST @ 6% P.A FROM THE DATE OF THE
PETITION TILL ITS REALIZATION.
THESE APPEALS, COMING ON FOR DICTATING
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.6563/2015 is filed by the Insurance Company
which is arrayed as second respondent in MVC No.1270/2009
that stood pending on the file of Motor Accident Claims
Tribunal-IV, Mangaluru seeking to set side the impugned order
with a contention that it is not liable to pay any compensation
to the claimant.
NC: 2023:KHC:42939
2. MFA No.637/2016 is filed by the claimant
challenging the same award, however seeking for enhancement
of compensation.
3. Heard Smt.C.Sonali, learned counsel who argued on
behalf of Sri.K.Jeevan, learned counsel on record for the
appellant in MFA No.637/2016 and respondent No.1 in MFA
No.6563/2015. Also heard Sri.O.Mahesh, learned counsel who
appeared for respondent No.2 in MFA No.637/2016 who is the
appellant in MFA No.6563/2015.
4. For the sake of convenience of discussion, the
appellant in MFA No.6563/2015 will hereinafter referred as 'the
Insurance Company' and the appellant in MFA No.637/2016 as
the 'claimant'.
5. The case facts as could be perceived by the
contents of claim petition filed under Section 166 of the Motor
Vehicles Act in brief are that, on 6.10.2008 at about 4.30 p.m.
the claimant was proceeding on a motorcycle bearing
Registration No.KA-19 X-4801 along with his friend by name
Vinay as a pillion rider. The claimant dropped the said Vinay
NC: 2023:KHC:42939
near Amritheshwari Petrol Bunk. Thereafter started proceeding
towards Lalbagh. At that time, a Tata 207 vehicle bearing
registration No.KA-19 C-1055 driven by its driver in a rash and
negligent manner came from behind and dashed against the
claimant's vehicle, due to which the claimant fell down and
sustained injuries.
6. The claimant was shifted to A.J. Hospital, Mangaluru
and there he took treatment as inpatient from 6.10.2008 to
7.10.2008. Thereafter, he was admitted at Unity Health
Hospital, Mangaluru and he underwent surgery there. The
claimant spent more than Rs.2,00,000/- towards medical and
other incidental expenses. He was discharged from the hospital
on 24.10.2008. However, once again he was admitted at the
same hospital on 28.11.2008 and had undergone treatment as
inpatient till 30.11.2008. Prior to the accident, the claimant was
hail and healthy, was first year student of Mangalore Instute of
Fire and Safety Engineering. Due to the accident he could not
attend the classes and therefore lost the entire academic year.
The claimant became permanently disabled and thus, he is
NC: 2023:KHC:42939
liable to be compensated to the extent of Rs.8,00,000/-
together with interest and costs.
7. The Insurance Company by filing a written
statement denied happening of the accident in toto and
contended that the claimant was not possessing valid Driving
Licence by the date of accident and thus, the claim application
is liable to be dismissed on the said ground alone. Admitting
the existence of valid policy by the date of accident, the
Insurance Company contended that the liability if any is
covered by the terms and conditions of the policy of insurance.
Stating that the claimant is at liability to prove the manner of
happening of accident, hospitalization, the aspect of disability
and allied grounds raised in the claim petition, the Insurance
Company sought the Tribunal to dismiss the claim petition with
costs.
8. The Tribunal which dealt with the matter, subjecting
the evidence of PWs.1 and 2, RW.1, Exs.P1 to P42 and Exs.R1
to R2 to scrutiny came to a conclusion that the claimant
established the manner of happening of accident and also the
liability on part of the Insurance Company to pay the
NC: 2023:KHC:42939
compensation. The Tribunal awarded a sum of Rs.2,69,000/-
towards compensation and directed the Insurance Company to
pay the same with interest at the rate of 6% per annum from
the date of petition till the date of realization.
9. As indicated supra, the claimant is disappointed
with the amount that is awarded as compensation and equally
the insurance company is aggrieved by the award of
compensation.
10. Making his submission with regard to the merits of
the matter, Sri.O.Mahesh, learned counsel who argued
representing the Insurance Company stated that as per the
contents of Ex.R2 i.e. the case sheet, that was issued by A.J.
Hospital, the claimant sustained injuries due to skid of scooter
and hit of divider. Learned counsel stated that, thus the
involvement of Tata 207 vehicle bearing registration No.KA-19
C-1055 is not at all found in the medical records which makes it
clear that a false case is foisted by the claimant, but the said
contention is not appreciated by the Tribunal. Learned counsel
further submitted that the claimant with the help of insured,
laid a false claim and thus the claim petition ought to have
NC: 2023:KHC:42939
been dismissed with costs. Learned counsel also stated that, as
per the version of the claimant one Vinay was travelling along
with the claimant as a pillion rider and therefore, the evidence
of the said Vinay is essential to establish the alleged rash and
negligent driving on part of the driver of the vehicle of the
insured. However, the said witness was not examined by the
claimant for the reasons best known to him and therefore the
claim application ought to have been rejected. Learned counsel
also stated that there is delay of nine days in lodging the
complaint to police which is not explained properly. Learned
counsel contends that the claimant took said time to implicate
the vehicle of the insured so as to get compensation and thus
laid a false claim. Learned counsel ultimately seeks the Court to
allow the appeal filed by the Insurance Company and thereby
to set aside the award passed by the Tribunal concerned.
11. Making his submission with regard to the stand
taken by him, learned counsel Smt.Sonali who argued on behalf
of the claimant contended that the claimant besides
establishing the manner in which the accident occurred had
also established the nature of injuries sustained by him, the
extensive treatment that was taken and also the aspect of
NC: 2023:KHC:42939
disability. Learned counsel stated that the claimant sustained
two fractures and became permanently disabled. The claimant
also lost an academic year of study and those aspects were
established through concrete evidence. However, the Tribunal
awarded meager sum as compensation and thus the amount
awarded is required to be enhanced.
12. In the light of the submissions thus made by the
rival parties, the points that emerges for consideration are;
(i) Whether the claimant established the manner
of happening of accident and that the accident
occurred due to the rash and negligent driving of
the driver of Tata 207 vehicle bearing registration
No.KA-19 C-1055?
(ii) Whether there exists any requirement to
enhance the amount of compensation as prayed
for by the claimant?
Point No.1:
13. As per the version of the claimant when the driver
of Tata 207 vehicle bearing registration No.KA-19 C-1055 hit
the motorcycle over which he was travelling from the rear side,
he fell down and sustained multiple injuries. To establish the
- 10 -
NC: 2023:KHC:42939
said fact, the claimant examined himself as PW1 and produced
Ex.P1 which is the copy of FIR, Ex.P2 which is the copy of
complaint and Ex.P7 which the certified copy of charge sheet.
14. As rightly contended by the learned counsel
appearing for the Insurance Company, when the accident
occurred on 6.10.2008, complaint was given to police on
15.10.2008. However, by the contents of Ex.P7 which is the
certified copy of charge sheet it is clear that police after due
investigation came to a conclusion that, due to the negligence
of the driver of the vehicle bearing Registration No.KA-19 C-
1055 the accident occurred. The contents of Ex.P34 which is
the copy of police intimation given by A.J. Hospital, Mangaluru
goes to show that the said intimation was furnished on
6.10.2008 itself. Though as rightly contended by the learned
counsel for the Insurance Company in Ex.R2 which is issued by
the same hospital, there is a mention regarding the history
that the claimant sustained injuries in a road traffic accident
occurred due to skid of scooter and hit of divider, the said
document cannot be taken into consideration as the said
endorsement does not disclose the basis of which it was made.
When the injured himself had spoken about the manner of
- 11 -
NC: 2023:KHC:42939
happening of accident and his version is supported by the
findings given by the police official who investigated the case,
an endorsement in the examination sheet which is marked as
Ex.R2 gains no significance. Though learned counsel for the
Insurance Company contended that when a two wheeler is hit
from the back side, the pillion rider ought to have sustained
injuries and non examination of the pillion rider i.e. Vinay is
fatal to the case of the claimant, the said submission cannot be
appreciated in view of the fact that the whole case of the
complainant is that he dropped the said Vinay near
Amritheshwari Petrol Bunk and thereafter while he was
proceeding, the accident occurred. Thus, the point under
discussion is decided holding that the claimant established the
manner of happening of accident and that accident occurred
due to negligence of the driver of Tata 207 vehicle bearing
Registration No.KA-19 C-1055.
Point No.2:
15. The claimant claimed Rs.8,00,000/- as
compensation, while the Tribunal has awarded a sum of
Rs.2,69,000/- as compensation. Arguing in respect of the claim
- 12 -
NC: 2023:KHC:42939
made, learned counsel for the claimant contended that the
claimant sustained two grievance injuries and took extensive
treatment for those injuries. Learned counsel also stated that,
the claimant lost one academic year of studies. He further
stated that the claimant has become permanently disabled and
thus he cannot work for eking out his livelihood and hence the
amount claimed ought to have been awarded. The fact that the
claimant sustained fractures of right and left femur and that he
took treatment at A.J. Hospital is established by the claimant
by producing evidence of PW2 and the medical records.
Evidence of PW2 is that he is working as Medical Officer and
Assistant Professor of A.J.Hospital. On 6.10.2008, the claimant
was admitted in their hospital with fracture of right and left
femur and he was discharged on 7.10.2008. Thereafter, the
claimant was again admitted in their hospital on 28.11.2008
and was discharged on 30.11.2008. He further deposed that he
examined the claimant on 25.11.2010 along with another
Doctor and gave Ex.P35 disability certificate and in their
opinion, the claimant sustained 28% of permanent physical
disability with respect to left lower limb.
- 13 -
NC: 2023:KHC:42939
16. PW2 during the course of cross-examination stated
that both the fractures are united. He also admitted that the
claimant is not taking treatment by the date of giving evidence.
The Tribunal awarded a sum of Rs.50,000/- under the head
pain and sufferings, Rs.1,84,000/- towards medical expenses,
Rs.25,000/- towards food and conveyance during treatment
period and Rs.10,000/- towards loss of amenities. In total, the
Tribunal has awarded a sum of Rs.2,69,000/- as compensation.
No material is produced by the claimant in proof of his
educational qualification and that he was a first year student of
Mangalore Institute of Fire and Safety Engineering by the date
of accident and that he lost an academic year of studies.
17. Also by the evidence of PW2 it is clear that the
fractures sustained are united. When there is lack of evidence
with regard to the educational qualification, the employment
which is expected to be undertaken for which the alleged
disability is an impediment, the claimant cannot claim
compensation, for loss of earnings due to disability.
18. When the award of the Tribunal is gone through,
this Court finds that the learned Presiding Officer of the Tribunal
- 14 -
NC: 2023:KHC:42939
had analyzed each and every aspect of the case and has come
to a just finding with regard to the amount which the claimant
is entitled as compensation. Therefore, this Court holds that
there are no grounds to interfere with the amount that is
awarded as compensation.
19. Thus, in the light of the findings given on points
Nos.1 and 2, the ultimate conclusion of this Court is that both
the appeals lacks merits and deserves dismissal.
Hence, both the appeals are dismissed without costs.
Sd/-
JUDGE
AP
CT:TSM
