M/S. United India Insurance ... vs Shri S. Selvaraj
2023 Latest Caselaw 7349 Kant

                           1
                                           MFA 3427/2015

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF OCTOBER, 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

             MFA NO.3427 OF 2015(MV-I)

BETWEEN:

M/S. UNITED INDIA INSURANCE COMPANY LIMITED
NO.487/1, C.M.H.ROAD, (ABOVE INDIAN OVERSEAS BANK)
NEAR AMARJYOTHI NURSING HOME, INDIRANAGAR
1ST STAGE, BENGALURU, NOW REP. BY ITS
REGIONAL OFFICE, 6TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD, BENGALURU - 560 001
REP. BY ITS AUTHORIZED SIGNATORY          ... APPELLANT

(BY SRI.LAKSHMINARASAPPA, ADV. FOR
    SRI.A.M.VENKATESH, ADV.)

AND:

1.     SHRI S. SELVARAJ
       S/O LATE SUSAI
       AGED ABOUT 55 YEARS
       R/AT NO.248/A, 3RD CROSS
       SUDHAMANAGAR
       BENGALURU - 560 075

2.     SHRI.S.D. SELVA KUMAR PACKIYARAJ
       NO.13, FIRST FLOOR, A CROSS
       OLD POLICY LANE, NANJAREDDY
       COLONY, MURUGESH PALYA
       BENGALURU.                       ... RESPONDENTS

(BY SRI.C.R.RAVISHANKAR, ADV. FOR R1;
    SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 15.07.2014
PASSED IN MVC NO.129/2010 ON THE FILE OF THE 12TH
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT,
                             2
                                                MFA 3427/2015

BANGALORE, AWARDING A COMPENSATION OF RS.85,436/-
WITH INTEREST @ 6% P.A., FROM THE DATE OF PETITION
TILL ITS REALIZATION.


     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON 15.09.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                      JUDGMENT

In this appeal, the Insurance Company has

challenged the judgment dated 15.07.2014 in

M.V.C.No.129/2010 passed by the M.A.C.T.,

Bangalore (SCCH-8) ('the Tribunal' for short).

2. For the sake of convenience, the rank of the

parties will be referred to as per their status before

the Tribunal.

3. Brief facts of the case are, on 06.10.2009 at

about 09:15 am while the petitioner was standing

along with his bicycle to cross the road on 2nd Main

Road, B.D.A. Layout, H.A.L. 3rd Stage, Bengaluru, a

motor cycle bearing Reg.No.KA-19/R-279 hit against

him injuring him and damaging the bicycle. After

MFA 3427/2015

taking treatment at Chinmaya Mission Hospital,

Indiranagar and St. John's Medical College Hospital,

Bengaluru, the petitioner moved the Tribunal seeking

compensation of Rs.10,50,000/-. Claim was

opposed by the Insurance Company questioning the

involvement of the motor cycle in the accident and

delay in filing the complaint. The Tribunal after

taking the evidence, by impugned judgment awarded

compensation of Rs.85,436/- with 6% interest.

Aggrieved by the same, the Insurance Company has

filed this appeal on various grounds.

4. Heard the arguments of Sri.

Lakshminarasappa, learned counsel on behalf of Sri.

A.M. Venkatesh, learned counsel for the

appellant/Insurance Company and Sri. C.R.

Ravishankar, learned counsel for the petitioner.

5. It is the contention of learned counsel for the

Insurance Company that 3 weeks after the accident,

complaint was filed involving the motor cycle bearing

MFA 3427/2015

Reg.No.KA-19/R-279 whereas when the 2nd

petitioner was admitted to the hospital, information

was furnished about the registration number of the

motor cycle as KA-51/R-279. RW-1 Smt. Devika,

the Medical Records in-charge of Chinmaya Mission

Hospital has clearly stated in the evidence that the

vehicle involved in the accident was Splendor

bearing Reg.No.KA-51/R-279. The Investigating

Officer stated that receipt of complaint was on

30.10.2009 from the petitioner about the accident

that took place on 06.10.2009. The motor cycle

involved is one and motor cycle against which the

case has been filed is different one and there is a

convenience between the petitioner and the

Investigating Officer. The Tribunal has lost sight of

all these aspects and sought for interference and

dismissal of the claim petition.

6. Per contra, learned counsel for the petitioner

has contended that in the accident, the petitioner

MFA 3427/2015

has sustained grievous injuries, he was under

hospitalization at Chinmaya Mission Hospital, then at

St. John's Hospital, Bengaluru. Only after discharge,

he could be able to approach the Police to file the

complaint. There is no material on record about who

has furnished the vehicle details to Chinmaya

Mission Hospital. Only a small mistake is made in

the registration number as "KA-51" instead of "KA-

19". The delay has been explained. In a complaint,

there is a specific mention about the registration

number of the motor cycle. Accordingly, the rider

was prosecuted and it was not challenged by the

rider or the Insurance Company. Only when the

liability is fastened, such a defence is taken. It is

further contended that the petitioner though suffered

fractures on his face, compensation assessed by the

Tribunal is inadequate as he has suffered 22.5%

whole body disability and the petitioner was earning

Rs.8,000/- per month and sought for enhancement.

MFA 3427/2015

7. I have given my anxious consideration to the

arguments advanced on both sides and also perused

the materials on record.

8. In this appeal, there are two grounds. One

is urged on behalf of the Insurance Company and

another is on behalf of the petitioner. According to

the Insurance Company, the motor cycle involved in

the accident is KA-51/R-279, but the petitioner

claims compensation against motor cycle bearing

Reg.No.KA-19/R-279. Contra petitioner claims that

inadequate compensation was awarded by the

Tribunal.

9. Adverting to the first point regarding the

registration number of the vehicle, evidence is made

available before the Tribunal. The petitioner

examined himself as PW-1 and he has offered the

explanation for the delay in filing the complaint that

having sustained the head injury, he was under

hospitalization, only after recovery, he could

MFA 3427/2015

approach the Police on 30.10.2009 to file the

complaint. As he is aware of the registration number

of the vehicle, same was mentioned in the

complaint. During the course of his cross-

examination, though efforts were made to explain

that there is no valid reason for the delayed

complaint, nothing has brought out to doubt the

veracity of the petitioner. The petitioner has

reiterated in the cross-examination that he has not

furnished the registration number of the motor cycle

when he was admitted to the hospital.

10. The petitioner has examined eye witness to

the accident one Ramesh as PW-4, who is

chargesheet witness too. His testimony points out

that at the time of accident, he had seen the

registration number of the motor cycle as KA-19/R-

279 and he stood the test of cross-examination on

behalf of the Insurance Company, nothing has

demonstrated to doubt his veracity.

MFA 3427/2015

11. On behalf of the Insurance Company, the

M.L.C. records of Chinmaya Mission Hospital has

been secured before the Tribunal through RW-1 Smt.

Devika, she has produced Ex.R1/out-patient case

sheet and Ex.R2/M.L.C. register extract. According

to her, extract of Ex.R2 was issued to Indiranagar

Police wherein it is shown as R.T.A. hit by two-

wheeler, patient travelling in bicycle. According to

her, registration number of the motor cycle is

mentioned in Ex.R2 as "Splendor KA/51/R/279". Her

cross-examination demonstrated that she was not

the Doctor; she is only a Clerical Staff of the

Hospital. The Insurance Company has not examined

the Doctor who recorded the M.L.C. information in

Ex.R2. Even from RW-1, nothing has demonstrated

that who gave the information about the motor cycle

registration number.

12. RW-2 Sridhara Shastri. T.G is the Police

Inspector of Indiranagar Traffic Police Station at

MFA 3427/2015

relevant point of time. Though he is examined on

behalf of the Insurance Company, he has been

treated as hostile and cross-examined. The

Investigating Officer has asserted that he has

ascertained reasons for the delay in filing the

complaint as he was assured by the rider of the

motor cycle about the reimbursement of the medical

expenses. Ex.R2 was put to the mouth of

Investigating Officer that it is the M.L.C. intimation

of Chinmaya Mission Hospital, but according to him,

he has not received it. But, he admits that in the

said intimation, registration number of the motor

cycle was mentioned as KA-51/R-279. The

Investigating Officer has not visited Chinmaya

Mission Hospital nor made any enquiry in the course

of investigation to ascertain the correct registration

number of the motor cycle. It is brought out that at

11:15 am, the complaint was received, on the very

day at 01:00 pm, the motor cycle was seized, on the

very day within half an hour of seizure of motor

MFA 3427/2015

cycle, I.M.V. has been done. It shows something

fishy in the statement of Investigating Officer.

During cross-examination on behalf of the petitioner,

it is brought out that notice under Section 133 of

Motor Vehicles Act was issued to the owner, who has

produced the motor cycle. On the basis of

investigation, chargesheet has been filed. Ex.P3 is

the chargesheet prepared on 30.10.2009 itself,

whereas the complaint was also given on

30.10.2009. This clearly shows the connivance

between the petitioner and the Police in receiving the

complaint on very same day, completing all the

formalities and filing of chargesheet on the very day.

This clearly shows that the Investigating Officer has

not at all enquired about medical intimation received

from the Chinmaya Mission Hospital, no efforts were

made to clear the doubt about non-involvement of

motor cycle bearing Reg.No.KA-51/R-279 in the

accident. This clearly gives an inference the

MFA 3427/2015

mechanical way of handling the case in filing the

chargesheet.

13. It is the duty on part of the petitioner to

explain that who gave the information to the

Chinmaya Mission Hospital that the motor cycle

bearing Reg.No.KA-51/R-279 was involved in the

accident. When the petitioner was unaware the

registration number of motor cycle, how he came to

know that motor cycle bearing Reg.No.KA-19/R-279

was involved in the accident. The manner in which

the eye witness has been examined on the very day

on filing the complaint creates a doubt whether he

was a genuine eye witness or not. Unless the

Tribunal ascertained the motor cycle bearing

Reg.No.KA-51/R-279 was not involved in the

accident, it could not be possible to fasten the

liability against the motor cycle in question.

14. I have perused the impugned judgment.

Though the Tribunal has recorded its finding that the

MFA 3427/2015

motor cycle bearing Reg.No.KA-19/R-279 was

involved in the accident, it is not based on shabby

evidence. Hence, the petitioner is required to

establish non-involvement of motor cycle bearing

Reg.No.KA-51/R-279 in the accident and he has to

offer a correct explanation that how he came to

know that the motor cycle bearing Reg.No.KA-19/R-

279 was involved in the accident.

15. Regarding 2nd point is concerned, adverting

to the argument of learned counsel for the petitioner

that he has suffered head injury, compensation

awarded inadequate which can be kept upon for the

Tribunal to re-assess the same. Since the matter

require reconsideration before the Tribunal regarding

non-involvement of the motor cycle referred in the

hospital and involvement of the motor cycle referred

in the complaint, it is fit case for remand. In the

result, the following:

MFA 3427/2015

ORDER

i) Appeal is allowed.

ii) Impugned judgment and award is set aside.

iii) The matter is remanded back to the Tribunal to the stage of further evidence of the petitioner. The Tribunal is requested to afford an opportunity to the petitioner to place additional evidence and to determine the claim afresh in accordance with law.

iv) Without further notice, parties to appear before the Tribunal on 17.11.2023.

Sd/-

JUDGE

PA CT:HS