Karnataka High Court
Asifulla @ Md Asif vs Buden Sab on 1 February, 2024
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MFA No. 2994 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1 ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 2994 OF 2017 C/W
MFA NO.4870 OF 2017 (MV-I)
IN MFA NO. 2994 OF 2017
BETWEEN:
HDFC ERGO GIC LTD.
RAMON HOUSE, H.T.PAREKH MARG, NO.169
BACKBAY RECLAMATION, MUMBAI - 400 020
NOW REP. BY MANAGER - LEGAL, HDFC ERGO
GIC LTD., REGIONAL OFFICE, II FLOOR
25/1, BUILDING NO.2, SHANKARANARAYANA
BUILDING, M.G.ROAD, BENGALURU - 560 001 ... APPELLANT
(BY SRI.A.N.KRISHNASWAMY, ADV.)
AND:
1. ASIFULLA @ MD. ASIF
S/O NAZEER @ SHEIK NAZEER
NOW AGED ABOUT 23 YEARS
OCC: COOLIE WORK
Digitally signed by MALA R/O BARAGUR, SIRA TALUK - 572 119
KN
Location: HIGH COURT 2. BUDEN SAB, S/O HUSSAIN SAB
OF KARNATAKA NOW AGED ABOUT 43 YEARS
OWNER OF MOTORCYCLE
R/O BELLAVI, TUMKUR TALUK - 572 107
... RESPONDENTS
(BY SRI.K. SHANTHARAJ, ADV. FOR R1;
R2 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.01.2017
PASSED IN MVC NO.653/2014 ON THE FILE OF THE
SENIORCIVIL JUDGE AND JMFC., SIRA, AWARDING
COMPENSATION OF RS.3,50,000/- WITH INTEREST AT 9%
P.A. FROM THEDATE OF PETITION TILL REALIZATION.
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MFA No. 2994 of 2017
IN MFA NO.4870 OF 2017
BETWEEN:
ASIFULLA @ MD. ASIF
S/O NAZEER @ SHEIK NAZEER
NOW AGED ABOUT 20 YEARS
OCC: COOLIE WORK
R/O BARAGUR, SIRA TALUK - 572 137 ... APPELLANT
(BY SRI.K. SHANTHARAJ, ADV.)
AND:
1. BUDEN SAB, S/O HUSSAIN SAB
NOW AGED ABOUT 43 YEARS
R/O BELLAVI, TUMKUR TALUK - 572 101
2. HDFC ERGO GENERAL INSURANCE COMPANY
REP. BY ITS MANAGER, RAMOHAN HOUSE
H.T.PAREKH MARG, NO.169
BACKBAYRECLAMATION
MUMBAI - 400 020 ... RESPONDENTS
(BY SRI.A.N.KRISHNASWAMY, ADV. FOR R2;
R1 SERVICE OF NOTICE DISPENSED WITH
VIDE ORDER DATED 12.01.2024)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACTAGAINST THE JUDGMENT AND AWARD DATED
05.01.2017PASSED IN MVC NO.653/2014 ON THE FILE OF
THE SENIORCIVIL JUDGE AND ADDITIONAL MACT, AT SIRA,
PARTLYALLOWING THE CLAIM PETITION FOR COMPENSATION
ANDSEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND
RESERVEDFOR JUDGMENT ON 12.01.2024 AND COMING ON
FORPRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURTDELIVERED THE FOLLOWING:
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MFA No. 2994 of 2017
JUDGMENT
In these appeals, the Insurance Company as
well as the petitioner have challenged the judgment
and award dated 05.01.2017 in M.V.C.No.653/2014
passed by the Senior Civil Judge and Addl. M.A.C.T.
Sira ('the Tribunal' for short).
2. For the sake of convenience, the parties
shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 08.02.2014 at
about 07:00 pm, while the petitioner was walking on
the left side of Baragur-Gopikunte road, near
Baragur Village of Sira Taluk, a motor cycle bearing
Reg.No.KA-34/L-3946 hit and injured him. After
taking treatment at Government Hospital, Sira and
Vinayaka Hospital, Tumkur, the petitioner
approached the Tribunal for grant of compensation
of Rs.4,50,000/-. Claim was opposed by the
Insurance Company denying the accident, alleging
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that the accident is concocted for the sake of
compensation in connivance with the Police. The
Tribunal after holding the enquiry and taking the
evidence, passed the impugned judgment accepting
the accident and awarded compensation of
Rs.3,75,000/- with 9% interest p.a. excluding
interest on future medical expenses of Rs.25,000/-.
Aggrieved by the same, the Insurance Company has
filed M.F.A. No.2994/2017; pleading inadequacy and
seeking enhancement, the petitioner has filed M.F.A.
No.4870/2017 on various grounds.
4. Heard the arguments of
Sri. A.N. Krishnaswamy, learned counsel for the
Insurance Company and Sri. K. Shantharaj, learned
counsel for the petitioner.
5. It is the contention of learned counsel for
the Insurance Company that the alleged accident
took place on 08.02.2014, no M.L.C. was registered
in the hospital; the petitioner was discharged from
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the hospital on 13.02.2014 and the complaint was
filed on 24.02.2014; there is a delay of 16 days from
the date of accident and delay of 8 days from the
date of discharge in filing the complaint: there is a
specitic defence taken in the obiection statement
that the accident is fake, the petitioner in collusion
with the Police, created charge sheet for the sake of
compensation by playing fraud; I.A.No.2/2015 was
filed under Order XVI Rules 1 and 2 of C.P.C. before
the Tribunal seeking permission to summon the
witnesses to establish fraud alleged by the Insurance
Company, but the Tribunal has rejected the
application without any reason. It is the specific case
that the accident had not taken place and the
Insurance Company is having evidence in proof of it;
Exs.R2 and R3 are such documents; without
examining the author of the documents, it is not
possible to prove the fraud alleged in the charge
sheet filed by the Police; CW-10 Dr. Azgarbeig,
Medical Officer, Government Hospital, Sira is the
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relevant person to prove regarding non-registration
of M.L.C.; the Tribunal curtailed the right of the
Insurance Company to place evidence and procedure
adopted is defective in nature. It is further
contended that the accident, involvement of the
vehicle and the rider is denied; unless the Insurance
Company is provided an opportunity, it may not be
possible to establish the fraud. Hence, he sought for
an opportunity to lead the evidence before the
Tribunal.
6. Per contra, learned counsel for the petitioner
has contended that the claim is under Section 166 of
the Motor Vehicles Act, 1988; proof of negligence is
not required; it is sufficient for the petitioner to
prove the involvement of the vehicle to claim the
compensation; Insurance Company has not proved
the fraud alleged by examining relevant witnesses;
the petitioner was not the rider, he was a pedestrian
when the accident took place; immediately after the
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accident, he was taken to the hospital; history of the
accident was informed to the hospital; he has
suffered fracture of right femur bone and also facial
injury; under such circumstances, he could not go to
the Police to file the complaint. It is also contended
that in the objection statement, the accident is not
denied; Insurance Company has not challenged the
order passed by the Tribunal on I.A.No.2/2015 and
also it has no right to urge the same in the appeal;
the Tribunal has correctly accepted the evidence
proof of the accident.
6.1. As regarding inadequacy of compensation,
it is contended that in spite of medical evidence
establishing 33.5% whole body disability, the
Tribunal did not consider the same; the petitioner is
aged 17 years, doing business and earning income;
in the year 2014, a person with no proof of income
will earn not less than Rs.8,500/-; the injury has
disabled him permanently, but the Tribunal did not
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consider pain and sufferings, loss of amenities and
discomfort, loss of income during laid-up period, so
also loss of future earnings; compensation awarded
is disproportionate to the gravity of the injury and he
sought for enhancement.
7. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the materials on record.
8. The points that arise for consideration are:
1) Whether the petitioner has proved the accident as
claimed in the petition?
2) Whether the rejection of I.A.No.2/2015 filed by
the Insurance Company is proper?
3) Whether the impugned judgment calls for
interference regarding point No.1?
Reg. Point No.1:
9. The petitioner claims that there was an
accident on 08.02.2014 at 07:00 pm. and to support
the same, he is relying upon Exs.P1 to P15.
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Insurance Company has specifically denied the
accident and alleged fraud is played by the petitioner
in collusion with the Police for the sake of
compensation. Now, in this background, the claim of
the petitioner has to be examined.
10. Adverting to the argument of
learnedcounsel for the petitioner that there is no
need forproving negligence to claim compensation
underSection 166 of Motor Vehicles Act, the answer
by theInsurance Company is otherwise. To buttress
thesame, Insurance Company has relied upon
thejudgment of Hon'ble Apex Court in Minu B.
Mehtaand Another -Vs.- Balakrishna
Ramachandra Nayan and Another¹. The Hon'ble
Apex Court at para No.21 of the judgment,
specifically stated the position of law, which reads as
follows:
"21. The liability of the owner of the car to
compensate the victim in a car accident due to the
negligent driving of his servant is based on the law
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of tort. Regarding the negli- gence of the servant
the owner is made liable on the basis of vicarious
liability. Before the master could be made liable it is
necessary to prove that the servant was acting
during the course of his employment and that he.
was negligent. .........."
Further, the Hon'ble Apex Court laid-down that:
"27. ......... The concept of owner's liability with out
any negligence is opposed to the basic principles of
law. The mere fact that a party received an injury
arising out of the use of a vehicle in public place
cannot justify fastening liability on the owner.
............... The proof of negligence remains the
lynch pin to recover compensation.
At para No.29, it is held that:
"29. ......... In the case of a motor accident the
owner is only liable for negligence and on proof of
vicarious liability for the1 acts of his servant. The
necessity to provide effective means for
compensating the victims in motor accidents should
not blind us in determining the state of law as it
exists today."
11. Learned counsel for the petitioner has
contended that the said law was laid down on the
AIR 1977 SC 1248
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bases of the old law, post amendment in the year
1988 the said principles cannot be applied.
11.1. Section 166 of the Motor Vehicles Act
reads as follows:
"166. Application for compensation. - (1) An
application for compensation arising out of an
accident of the nature specified in sub-section (1)
of section 165 may be made - (a)by the person
who has sustained the injury; or......
11.2. Section 165 (1) of the Motor Vehicles Act
reads as follows:
"165. Claims Tribunals. - (1) A State Government
may, by notification in the Official Gazette,
constitute one or more Motor Accidents Claims
Tribunals (hereafter in this Chapter referred to
Claim Tribunal) for such area as may be specified in
the notification for the purpose of adjudicating upon
claims for compensation in respect of accidents
involving the death of, or bodily injury to, persons
arising out of the use of motor vehicles, or
damages to any property of a third party so arising,
or both.
11.3. Even if the argument of learned counsel
for the petitioner is accepted for a moment, the
involvement of the motor cycle in the accident has to
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be established by the petitioner, the same is under
challenge. Whether the evidence of the petitioner is
going to establish the involvement of the motor cycle
has to be examined now.
12. As referred supra, the petitioner relied
upon Exs.P1 to P15.The accident took place on
08.02.2014, the complaint was filed on
24.02.2014,There is a delay of 16 days in filing the
complaint. The discharge summary under Ex.P11
points out that the petitioner was discharged from
Vinayaka Hospital on 13.02.2014. Even after
discharge, the complaint is filed to the Police with a
delay of 11 days. The reason assigned in the
complaint is that the petitioner was under treatment.
Even though the petitioner was discharged on
13.02.2024, why the complaint was filed after 11
days, found no explanation.
13. Soon after the complaint, F.I.R. was
registered under Ex.P1 at 02:15 pm, spot inspection
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was carried at 03:15 pm, motor cycle was seized at
09:00 am, wound certificate at Ex.P5 was signed by
the Medical Officer on 25.02.2014, Investigating
Officer has recorded the statement of witness on
24.02.2014 and on 26.02.2014 (within two days),
charge sheet was filed and presented to the Court.
From the date of filing the complaint to the date of
filing the charge sheet, the manner in which the
investigation is carried out shows preparedness of
the Police to file the charge sheet.
14. It is pertinent to note that
Ex.P12/accident register extract of the Government
Hospital refers R.T.A. at 07:00 pm on 08.02.2014
and the petitioner was in the Government Hospital at
08:30 pm, no M.L.C. was registered and the
petitioner was taken to Vinayaka Hospital on the
very day. The case sheet pertains to Vinayaka
Hospital is made available at Ex.P14. The history of
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accident mentioned in the case sheet reads as
follows:
"H/o RTA at 7:00 pm in between Bargur and Gopikunte
near Sidlaguntappa temple"
15. As seen from the evidence of PW-1 father
of the petitioner that he was an eye witness to the
accident, he knew that one Chandrashekar was
riding the motor cycle. Neither in the Government
Hospital nor in Vinayaka Hospital, there is any
whisper who was the rider of the motor cycle. The
case sheet pertains to Vinayaka Hospital also carries
consultant notes which refers the alleged accident,
which reads as follows:
"H/o Alleged RTA on Saturday 8-2-14 around 7
PM near Sidlaguntappa Temple between Bargur
& Gopikunte. The patient was pushing his
punctured TVS Moped towards Bargur shen Mr.
Chandrashekar riding his bike hit him from the
backside.............
There is over-writing in the said note that one
Nanjappa was referred to originally as the rider and
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his name was striked off, inserted the name of
'Chandrashekar'. Further interesting to note that in
the case sheet, there is another note made by the
very hospital which reads as follows:
"Mr. Asif was going from gopikunte to
Bargurwith his punctured moped at around 7:00
pmon left side of road while Rajappa (resident
ofGopikunte) going from Baragur to
Gopikuntecame in wrong direction and hit him
head onwhile........."
Now, from the very records produced by the
petitioner, 3 names are coming out the rider of the
motor cycle. Firstly Nanjappa, then Rajappa and
ultimately Chandrashekar. The Police have charge
sheeted Chandrashekar as the rider of the
motorcycle.
16. It is the argument of learned counsel for
the petitioner that since the Police records indicate
the accident and the rider, the Tribunal has accepted
the same. The real grievance of the Insurance
Company is that who was the rider of the motor
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cycle? In this regard, Insurance Company has also
produced Exs.R2 and 3 through its Officer and filed
an application to summon the author of the said
documents to prove the fraud. Since the application
was rejected, the Insurance Company was prevented
from producing evidence in proof of its case. The
manner in which the investigation is done
mechanically and filing the charge sheet within 2
days, require careful consideration by the Tribunal.
Unless the Insurance Company is given liberty to
prove the fraud, the Tribunal has no other
alternative to accept the evidence of the petitioner
and to proceed with the assessment of the
compensation.
17. The proof of Exs.R2 and 3 require
evaluation by the Tribunal. Rider of the motor cycle
Chandrashekar has given a statement otherwise that
he was not the rider and he never rided the
motorcycle in question. The Medical Officer who
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recorded the case sheet, admission register in the
Government Hospital has been arrayed as CW-10, he
is relevant witness to explain the history of the
accident furnished, even though the Tribunal did not
permit the Insurance Company to examine him. This
shows that the Tribunal has not allowed the parties
to place evidence in proof of their pleadings. Unless
the parties have placed evidence, it is not possible
for doing real justice. Preventing one party to place
evidence is not a sign of fair trial on part of the
Tribunal and it is rightly contended that there is a
defective procedure followed by the Tribunal. Hence,
one side evidence cannot prove either the
involvement of the vehicle or negligence on part of
the rider. Accordingly, first point is answered.
Reg. Point No.2:
18. Before the Tribunal, application under
Order XVI Rules 1 and 2 of C.P.C. is filed with list of
3 witnesses and what they are going to depose
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before the Tribunal. The reason assigned by the
Tribunal is incorrect and not a reasoned order. When
the party wants to lead evidence, there is no hurry
for the Tribunal to proceed with rejecting the
application. The order sheet points out that on
08.10.2015, I.A.No.2/2015 was filed before the
Tribunal. Thereafter, 15 adjournments were granted
till 05.08.2016. Almost 10 months have elapsed for
the Tribunal to consider the application. Instead, the
Tribunal ought to have allowed the application,
summoned the witnesses, examined them andathen
proceeded considering the claim on merits. The
manner in which the application was dismissed
prompted a mechanical judgment and not the
judgment on merits. The procedure followed by the
Tribunal in rejecting I.A.No.2/2015 filed by the
Insurance Company is erroneous.
19. Adverting to the argument of learned
counsel for the petitioner that since the order on
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I.A.No.2/2015 is not challenged by the Insurance
Company, it has attained finality, it is hard to accept
such an argument as the Insurance Company is
having all rights to question the proceedings before
the Tribunal and the same is now urged in this
appeal as one of the ground. While exercising the
powers under the appellate jurisdiction, this Court is
having powers to consider the contentions raised
byboth the sides. Whether the trial was conducted
fairly is also relevant factor for consideration in the
appeal. Hence, the rejection of the the application is
not proper. Accordingly, point No.2 is answered.
Reg. Point No.3:
20. On careful perusal of the impugned
judgment, it is pertinent to note that the tribunal at
one breath says that the evidence is required from
the Insurance Company to prove the fraud and on
another breath holds no evidence is placed before it.
On the other hand, the Tribunal prevents the
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Insurance Company from placing the evidence
before it in proof of the fraud. A claim under Motor
Vehicles Act of this nature is a summary procedure.
No strict proof is required under such circumstances.
The Tribunal ought to have liberally permitted the
parties to place their evidence, same is lacking in the
order of the Tribunal.
21. The Tribunal has assessed the
compensation of Rs.3,75,000/-. As rightly contended
by learned counsel for the petitioner, proper
application of mind has not been made. The
petitioner was aged 17 years, doing Plastic Business
and he was already earning. Medical evidence is
placed that the petitioner has suffered permanent
disability and loss of future earnings ought to have
been assessed by the Tribunal. In a case of this
nature, the Tribunal requires to assess compensation
towards pain and sufferings, loss of amenities and
discomfort, loss of income during laid-up period,
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incidental expenses such as attendant charges,
travelling expenses and money spent towards food
and nourishment. These are the aspects which are
Tribunal not at all considered by the Tribunal.
22. The Tribunal treated the petitioner as a
minor and awarded fixed compensation relying upon
the judgment of Hon'ble Divisional Apex Court in
Mallikarjun -Vs.Co.Ltd.National Insurance
Manager,is requires to Another2. Compensation
assessed under different heads is also not proper.
The Tribunal is required to redo the procedure of
enquiry and award just compensation . The matter
requires reconsideration before the Tribunal for
which it is a fit case for remand, rather adjudicating
the case merits. Accordingly, point No.3 is answered.
23. Hence, both the appeals merit
consideration, in the result, the following:
2013 ACJ (SC) 2445
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ORDER
i) Both the appeals are allowed-in-part.
ii) Impugned judgment and award is set
aside.
iii) The matter is remanded back to the
Tribunal with a direction to take the case
to the stage of I.A.No.2/2015 filed by the
Insurance Company, allow the application,
permit the Insurance Company to lead
evidence and also permit the petitioner to
lead further evidence, if required, and
then to decide the case on merits, wholly
uninfluenced by any of the observations
made supra.
iv) Without further notice, parties to appear
before the Tribunal on 07.03.2024.
v) Amount in deposit, if any shall be
transmitted to the Tribunal along with
records forthwith.
Sd/-
JUDGE
PA
CT:HS
