Karnataka High Court
Sri. Sadashiva K vs Mr. Ravish on 10 October, 2023
Bench: C M Joshi
-1-
NC: 2023:KHC:36880
MFA No. 205 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 205 OF 2018 (MV-I)
BETWEEN:
SRI SADASHIVA K,
S/O LATE K.P.KANNAN,
AGED ABOUT 57 YEARS,
R/AT JAYAKRIPA,
K.KORAPOLU COMPOUND,
HOIGEBAZAR,
MANGALURU-575 001.
...APPELLANT
(By SRI GOURAV.P.P HEGDE, ADVOCATE)
AND:
1. MR. RAVISH,
S/O RAMACHANDRA,
AGED ABOUT 26 YEARS,
R/AT D.NO.3-112#118,
Digitally signed
by T S 'RESHMA', BAJJODI BIKARNAKATTE,
NAGARATHNA MANGALURU-575 008.
Location: High
Court of
Karnataka
2. CHOLA MS GENERAL INSURANCE CO. LTD.,
S.R.COMPLEX, 1ST FLOOR,
BENDOORWELL,
MANGALURU-575 008.
(POLICY NO.3362/00926793/000/00
VALID FROM 31-07-2014 TO 20-07-2015)
...RESPONDENTS
(By SMT. VANITHA.K.R, ADVOCATE FOR R1 [ABSENT];
SRI O MAHESH, ADVOCATE FOR R2 THROUGH V/C)
-2-
NC: 2023:KHC:36880
MFA No. 205 of 2018
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 08.08.2017 PASSED IN MVC
NO.1252/2015 ON THE FILE OF THE 4TH ADDITIONAL
DISTRICT JUDGE, MEMBER, MACT, D.K, MANGALURU,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and
award dated 08-08-2017 passed in MVC No.1252/2015
by the learned IV Additional District Judge and Member,
MACT, DK Mangaluru, whereby the claim petition came to
be dismissed.
2. The brief facts that germane for this appeal are:
that on 06.06.2015 at about 23:00 hours while the
petitioner was riding his Activa Honda Scooter, bearing
Reg. No.KA-19-Y-5160 near New Chitra Junction,
Dongarkeri, Mangalore, the driver of the Car bearing Regn.
No. KA-19-ME-4087 drove from opposite side in a rash
and negligent manner and dashed to the petitioner's
scooter. Due to this impact the petitioner fell on the road
NC: 2023:KHC:36880
MFA No. 205 of 2018
and sustained grievous injury. Immediately after the
accident at 12:45 A. M. the petitioner was shifted to
K.M.C. Hospital, Mangalore, wherein he was admitted as
an inpatient and underwent surgery for his fracture of left
tibia and other injuries. The petitioner was discharged on
15.6.2015 with an advice to follow up treatment. The
petitioner has spent Rs.2,00,000/-for medical and
miscellaneous expenses. The petitioner needs another sum
of Rs.50,000/- towards this future treatment. Due to the
disability the petitioner is not in a position to do the work
which he was doing before the accident. It was alleged
that the accident occurred due to the rash and negligent
driving of driver of the car bearing Reg. No KA-19-ME-
4087. The Respondent No.1 being the owner and
respondent No.2 being the insurer of the car are jointly
and severally liable to pay compensation to the petitioner.
3. On issuance of notice, the respondents No.1 and 2
have appeared before the Tribunal. The respondent No.1
has not filed the written statement. The respondent No.2
NC: 2023:KHC:36880
MFA No. 205 of 2018
has filed the written statement contending that the
petition filed by the petitioner claiming total compensation
of Rs.10,00,000 with interest from the respondents is
contrary to law and true facts of the case. The respondent
No.2 has denied the age, avocation, income, injuries,
period of treatment, the amount spent thereon and the
manner of accident. It has contended that the petitioner
was rash and negligent and contributed to alleged
accident. The coverage of insurance policy to car bearing
Reg. No KA-19-ME-4087 was admitted. But contended that
liability if any was subject to the policy conditions,
limitations stipulated therein. It was contended that at the
time of the accident the driver of the car was not holding
valid and effective driving licence and therefore the
petition be dismissed.
4. On the basis of the above pleadings, the Tribunal
framed appropriate issues. The petitioner was examined as
PW1 and two witnesses were examined on his behalf as
PWs.2 and 3 and Exs.P1 to 20 were marked in evidence.
NC: 2023:KHC:36880
MFA No. 205 of 2018
The official of the respondent No.2 was examined as RW1
and Ex.R1 and R2 were marked.
5. After hearing the arguments, the Tribunal arrived
at a conclusion that the quantum of the compensation can
be assessed at Rs.1,18,600/- under the following heads:
Pain and sufferings Rs.50,000-00
Loss of income on the basis of --
disability
Loss of income during laid off Rs.7,500-00
period
Loss of amenities in life Rs.10,000-00
Medical expenses Rs.51,100-00
Future Medical expenses Rs.15,000-00
Attendant charges --
Total Rs.1,18,600-00
6. However, the Tribunal dismissed the petition on
the ground that the involvement of the vehicle insured by
respondent No.2 is doubtful.
7. Being aggrieved by the said judgment and award,
the petitioner has approached this Court in appeal.
8. On issuance of notice, respondent Nos. 1 and 2
appeared through their counsels. The Tribunal records
NC: 2023:KHC:36880
MFA No. 205 of 2018
have been secured and the arguments by learned counsel
for the appellant and the learned counsel for respondent
No.2 are heard.
9. The learned counsel for the appellant would
submit that the Tribunal erred in holding that the
discrepancies in the MLC records and the police records
probablise that no such accident had taken place. He
submits that the Tribunal has failed to appreciate the
evidence in the correct legal perspective. It is contended
that the first intimation to the police immediately sent
after the accident was correct and this should have been
believed by the Tribunal. Therefore, he has submitted that
the conclusions reached by the Tribunal to dismiss the
petition are not sustainable under law.
10. Per contra, learned counsel appearing for the
respondent No.2-Insurance company submitted that the
MLC records of the hospital clearly show that the accident
was between the two wheeler of the petitioner and
another bike. But however, the complaint was filed
NC: 2023:KHC:36880
MFA No. 205 of 2018
involving I 20 car insured by respondent No.2. Therefore,
when the hospital records show that the car was not at all
involved in the accident, the false implication of the car is
clearly visible from the evidence on record. The
subsequent corrections in the hospital records also indicate
that an effort was made to falsely implicate the car.
Therefore, he submits that the conclusions reached by the
Tribunal are justifiable. He also submit that the
respondent No.1 has conspicuously remained absent
without informing the Tribunal or the insurance company
about the alleged accident.
11. In view of the above submissions, the crux of the
matter is the proof in respect of the involvement of the car
insured by respondent No.2 in the accident.
12. The complaint lodged before the police produced
at Ex.P1 show that the petitioner while he was taking
treatment in the hospital at about 2.30 a.m. to 3.00 a.m.
gave a statement to the police constable. The said
statement was registered in Crime No.60/2015 at 3.15
NC: 2023:KHC:36880
MFA No. 205 of 2018
a.m. of 7-6-2015. In the said complaint, it was stated that
the car bearing No.KA.19.ME.4087 was involved in the
accident which happened at about 11.00 p.m. on
06-06-2015. The police proceeded on the basis of the said
complaint and ultimately filed the chargesheet against the
driver of the car.
13. The police intimation produced at Ex.P3 by
Yenepoya hospital show that the accident was at about
11.20 p.m. on 06-06-2015 and it was involving the activa
bike and the car. The said intimation was issued on
07-06-2015 at 12.15 a.m.
14. The Ex.P4 is another police intimation issued by
KMC hospital, Mangalore, which show that the accident
was between a scooter vs. a bike at about 11.20 p.m. on
06-06-2015 near Chitra Talkies. It was issued at 2.45
a.m. on 07-06-2015. Both these police intimations were
received by HC 524 on 06-06-2015. Obviously, the date is
incorrect and the police could not have received the police
intimation issued in wee hours on 07-06-2015 on the
NC: 2023:KHC:36880
MFA No. 205 of 2018
previous date. After the investigation, the police have
issued an accident claim information report as per Ex.P8
wherein the involvement of the car bearing KA.19.MV
4087 was stated.
15. It is also relevant to note that the driving licence
and RC particulars, the copy of the policy were produced
by the petitioner at Exs.P9 to P12.
16. The wound certificate issued at Ex.P7 by KMC
hospital show that the petitioner had reported to the
hospital that he has sustained injuries in RTA on
06-06-2015 at 11.20 p.m. near Chitra Talkies and the
accident was collision between the active Honda and a car.
It is relevant to note that it was written as a "scooter and
bike" and the word "scooter and" was struck off with
insertion of "and car" after the word "bike". Below it, it
was written as "active Honda".
17. The perusal of the case sheet produced at Ex.P18
show that the initial assessment form recorded at 1.00
a.m. of 07-06-2015 mention that it was a hit by a car.
- 10 -
NC: 2023:KHC:36880
MFA No. 205 of 2018
The head injury sheet also mention that it was a hit by a
car. However, the out patient sheet mention that the RTA
was between scooter Vs. bike. Therefore, even the case
sheet of the hospital also has discrepancy.
18. The learned counsel appearing for the
respondent No.2 has summoned the MLC Records of the
hospital which came to be marked at Ex.R1. The Doctor
who had written the MLC records was not available. The
Accident Register which is marked as Ex.R2(a) states that
the history of the RTA was between Scooter Vs. bike at
around 11.20 p.m. near Chitra Talkies. Later, the bike is
shown with an arrow mark as active Honda and car. The
person who wrote it has also made his initials. It is
obvious that the said correction was made subsequently.
19. From the above evidence available on record
which the insurance company has heavily relied, it is clear
that the hospital records of KMC Hospital show that the
accident was between the "scooter and the bike" at one
place and in all other places, it is shown as the accident
- 11 -
NC: 2023:KHC:36880
MFA No. 205 of 2018
between "scooter and the car". The police intimation
produced by the petitioner from the police records at
Ex.P7 show that the scooter was struck off and it was
shown as the active Honda and the car. Obviously, Ex.P7
tallies with the MLC register extract at Ex.R2(a), including
the corrections. Therefore, there is no evidence to show
that the accident was initially reported to be between
scooter and the bike, except the out patient sheet of the
hospital which may be found in Ex.P18.
20. The testimony of PW1 show that the car came
from the opposite direction at New Chitra Talkies junction
and dashed to the scooter. In his affidavit, he does not
mention that he was taken to Yenepoya Specialty hospital
initially. In the cross-examination, it was elicited that prior
to going to KMC hospital, he was taken to Yenepoya
Specialty hospital. There is elaborate cross-examination
on this aspect and he said that his son had taken him to
Yenepoya Specialty hospital and improves the same by
volunteering that the auto driver had taken him to
- 12 -
NC: 2023:KHC:36880
MFA No. 205 of 2018
Yenepoya Specialty hospital. Thus, it is evident that prior
to the petitioner being taken to KMC hospital, he was
taken to Yenepoya Specialty hospital.
21. The police intimation sent by Yenepoya Specialty
hospital produced at Ex.P3 show that the accident was
between the bike and the car and even the vehicle
numbers are also mentioned in the name. It was also
received by the same police constable who received the
Ex.P4 issued by the KMC Hospital.
22. Under these circumstances, it is clear that both
these hospitals had given divergent report regarding the
vehicles involved in the accident. Later, KMC hospital got
corrected their records by stating that the accident was
between the scooter and the car. There is no reason as to
why the Ex.P3 issued by Yenepoya Specialty hospital
which had received the injured immediately after the
accident should not be believed.
23. It is evident that the KMC hospital got corrected
its records to state that it was an accident between the
- 13 -
NC: 2023:KHC:36880
MFA No. 205 of 2018
scooter and a car. The manner in which the investigating
officer got clarified about the involvement of the car is not
before the Tribunal. It is not known whether the IO had
got it clarified from any other person apart from the
petitioner himself, who had lodged the complaint as per
Ex.P1. The Rule of preponderance of probability of
evidence require that the evidence has to be weighed.
When we examine the evidence on record, it is clear that
the probability of involvement of the car in the accident is
more probable than the involvement of a bike. When the
complaint which was recorded between 2.30 a.m. to 3.00
a.m., within a few hours of the accident is shown to have
come into existence out of spontaneity, there is no reason
to disbelieve the same. Simply because the hospital had
bungled with the type of the vehicle involved, it cannot be
said that the accident involving the car itself is doubtful.
There is absolutely no positive evidence to show that the
car was not involved in the accident. Though a feeble
argument is put forth that the respondent No.1 and the
- 14 -
NC: 2023:KHC:36880
MFA No. 205 of 2018
petitioner have colluded, there is no material to establish
the same. Such contention remains to be imaginary.
24. In the light of the above discussion, it is evident
that the Tribunal has erred in holding that the car insured
by the respondent No.2-Insurance company was not
involved in the accident.
25. The Tribunal had relied upon a few decisions in
this regard. It is evident that, in all those cases which
were referred to, none of the claimants had visited two
hospitals. In the case on hand, the first hospital visited by
the petitioner was elicited by the respondent No.2 in the
cross examination. There is no reason as to why the police
intimation issued by Yenepoya Specialty hospital, which
was also received by the police on the same day should
not be believed. The cases referred by the Tribunal could
have been distinguished on this aspect.
26. Hence, this Court finds that the appreciation of
the evidence by the Tribunal is not proper and it erred in
holding that the car insured by the respondent No.2 was
- 15 -
NC: 2023:KHC:36880
MFA No. 205 of 2018
not involved in the accident. Simply because the
respondent No.1 did not appear before the Tribunal and
contested the matter, it cannot be a ground to infer that
he is colluding with the petitioner.
27. The provisions of the Motor Vehicles Act, being
beneficial piece of legislation, the victims being forced to
approach the Tribunal for compensation out of the
circumstances which was out of their hands, there should
be positive evidence to discard their claims. In the case on
hand, there is no such positive evidence establishing
unholy nexus between petitioner and the respondent No.1.
Hence, the appeal deserves to be allowed.
28. The quantum of the compensation amount
determined by the Tribunal is not assailed either in the
appeal memo of the appellant or argued during the
arguments by both the parties. Therefore, there is no need
to enter into redetermination of the quantum of the
compensation. Hence, the following:
- 16 -
NC: 2023:KHC:36880
MFA No. 205 of 2018
ORDER
(i) The appeal filed by the appellant petitioner is
allowed.
(ii) The impugned judgment and award passed by
the Tribunal in MVC No.1252/2015 on 08-08-2015 is set
aside.
(iii) The petition stands allowed in part awarding the
compensation of Rs.1,18,600/- along with interest with
6% p.a. from the date of petition till its deposit before the
Tribunal.
(iv) The respondent No.2-Insurance company is
directed to deposit the compensation amount within the
stipulated time as per Section 166(5) of the M.V. Act.
(v) On such deposit, the Tribunal is at liberty to pass
suitable order regarding the fixed deposit and the release.
Sd/-
JUDGE
tsn*
