Karnataka High Court
M/S Royal Sundaram Alliance Insurance ... vs Manchegowda on 2 February, 2024
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NC: 2024:KHC:4708
MFA No. 7851 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 7851 OF 2014 (MV-I)
BETWEEN:
1. M/S ROYAL SUNDARAM ALLIANCE
INSURANCE CO LTD.,
BRANCH OFFICE, 135 BRIGADE ROAD
BANGALORE THROUGH CORPORATED OFFICER
SUBRAMANIAM BUILDINGS II FLOOR
ANNASALAI, CHENNAI-600002
BY AUTHORISED SIGNATORY
...APPELLANT
(BY SRI. C.R. RAVISHANKAR, ADVOCATE FOR
SRI.K. SURYANARAYANA RAO., ADVOCATE)
AND:
1. MANCHEGOWDA
S/O CHIKKAMANCHEGOWDA
AGED ABOUT 47 YEARS
HULUVADI VILLAGE
MANDYA TALUK AND DISTRICT-571401
Digitally
signed by
BHARATHI S 2. SHIVANNA
Location: S/O KALAPPA
HIGH COURT
OF HULUVADI VILLAGE
KARNATAKA THAGGALLI HOBLI
MANDYA TALUK AND DISTRICT-571401
...RESPONDENTS
(BY SRI.M.Y.SRINIVASAN., ADVOCATE FOR R1
R2 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.09.2014 PASSED IN MVC
NO.592/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, & CJM, MACT, MANDYA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 7851 of 2014
THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the insurer challenging the
judgment and award dated 8.9.2014 passed in MVC
No.592/2012 by the Member MACT and IV Additional District
and Sessions Judge, D.K, Mangaluru1.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. It is the case of the claimant that on 28.5.2005
when he was unloading sugarcane from the tractor trailer, the
said vehicle was driven in a rash and negligent manner causing
the accident in question, as a result of which he sustained
injuries. Claiming compensation for the said injuries, the
claimant filed a claim petition arraying the owner and insurer of
the tractor as respondent Nos.1 and 2 before the claims
Tribunal. The owner remained ex parte. However, the insurer
contested the proceedings before the claims Tribunal.
4. The claimant examined himself as PW.1 and a
doctor a PW.2. Exs.P1 to P6 were marked in evidence. The
Hereinafter referred to as the 'Tribunal'
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representative of the insurer was examined as RW.1. Exs.R1 to
R6 were marked in evidence. The Tribunal by its judgment and
award dated 8.9.2014 allowed the claim petition and awarded a
compensation of `1,98,000/- together with interest at 6% pa.
The respondent Nos.1 and 2 were jointly and severally held
liable to pay the compensation and the respondent No.2 -
insurer was directed to deposit the entire compensation
awarded. Being aggrieved, the present appeal is filed by the
insurer.
5. Learned counsel for the appellant - insurer assailing
the judgment and award passed by the Tribunal contended that
the date of accident was 28.5.2005, however, the complaint
was lodged before the police authorities on 8.2.2007 after a
delay of one year and eight months. That the claim petition
was filed on 1.9.2009 after an inordinate delay of more than
four years. Hence, it is contended that the claim not having
been made within a reasonable period, the same ought not to
have been entertained by the claims Tribunal. In support of his
contention he relies on the judgment of the Hon'ble Supreme
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Court in the case of Purohit and Company v. Khatoonbee &
Anr.2
6. Per contra, learned counsel for respondent No.1 -
claimant justifies the judgment and award passed by the
Tribunal and seeks for dismissal of the appeal.
7. The submissions of both the learned counsel have
been considered and the material on record including the
records of the Tribunal have been perused. The question that
arises for consideration is, whether the judgment and award
passed by the Tribunal is liable to be interfered with?
8. The undisputed facts are that the accident occurred
on 28.5.2005 and the claim petition was lodged on 1.9.2009
i.e., after a lapse of 4 years and 3 months. Further, the
complaint was lodged on 8.2.2007 as is forthcoming from FIR
(Ex.P1) i.e., after a delay of one year and 8 months.
9. It is relevant to note that the claimant, neither in
the claim petition nor in the affidavit evidence has explained
regarding the delay in loding the complaint as well as with
regard to the filing of the claim petition. It is forthcoming from
Ex.R4 - medical records of the District Hospital, Mandya, that
(2017) 4 SCC 783
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the claimant was treated as an inpatient from 28.6.2005 to
2.8.2005. Hence, there is absolutely no explanation as to why
the claimant did not lodge a complaint or file a claim petition
immediately after he was discharged from the hospital. In the
absence of even an explanation offered by the claimant, the
claims Tribunal erred in entertaining the claim petition and
considering the same on merits.
10. The Tribunal while appreciating the said aspect of
the matter has disbelieved the medical record register - Ex.R3
on the ground that the author of the said document is not
examined. Further, the contention of the insurer was
disbelieved since it has not examined its investigating officer
and not submitted any investigation report.
11. It is relevant to note that Exs.R3 and R4 being the
certified copies issued from the District Hospital, Mandya, which
is a Government Hospital ought not to have been ordinarily
disbelieved by the Tribunal, unless the same was disputed.
Mere non examination of the author of the said documents does
not come in the way of the Tribunal appreciating the said
documents to note its contents. Further, non examination of
any investigating officer by the insurer also will not aid the case
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of the claimant as the claimant himself did not aver or prove
regarding any explanation for the delay.
12. It is further relevant to note that the Tribunal has
recorded a finding that delay is not a reasonable ground to
evade compensation. Although delay is not a ground to award
compensation, in a case where there has been an inordinate
delay as in the present case of one year eight months in loding
the complaint and more than four years in filing the claim
petition, the claimant atleast ought to have set out sufficient
reasons for the said delay.
13. The Hon'ble Supreme Court in the case of Purohit
and Company2 considering a case where a claim petition has
been filed after 28 years and the only explanation offered was
that the claimants were poor and had no knowledge of the law,
held that the claim being stale ought to have been treated as a
dead claim. The law laid down by the Hon'ble Supreme Court is
squarely applicable to the facts of the present case, more
particularly having regard to the fact that the claimant has not
even sought to explain the delay. Accordingly, the question
framed for consideration is answered in the affirmative.
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14. In view of the aforementioned, the following order
is passed:
ORDER
i) The above appeal is allowed;
ii) The judgment and award dated 8.9.2014 passed in
MVC No.592/2012 on the file of Member MACT and
IV Additional District and Sessions Judge, D.K,
Mangaluru is set aside;
iii) The claim petition in MVC No.592/2012 on the file of
Member MACT and IV Additional District and
Sessions Judge, D.K, Mangaluru, is dismissed;
iv) The amount deposited by the appellant before this
Court be refunded to the appellant.
No costs.
Sd/-
JUDGE
nd
