Karnataka High Court
Mr. Jayaprakash R vs The Manager on 6 February, 2024
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MFA No. 2590 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2590 OF 2016 (MV-I)
BETWEEN:
1. MR. JAYAPRAKASH R
AGED ABOUT 62 YEARS,
S/O. CHIKKA RUDRAPPA,
R/AT NO.51/34, PAVANA,
21ST CROSS, 21ST MAIN,
VIJAYANAGARA,
BENGALURU-560 040.
...APPELLANT
(BY MS. AMBIKA, ADVOCATE FOR
SRI. MOHAMMAD SHERIFF., ADVOCATE)
AND:
1. THE MANAGER
THE UNITED INDIA INSURANCE CO. LTD.,
T.P. HUB, KRUSHI BHAVAN BUILDING,
6TH FLOOR, HUDSON CIRCEL,
Digitally signed BENGALURU-560 001.
by BHARATHI
S
Location: HIGH 2. THE MANAGER
COURT OF
KARNATAKA THE NEW INDIA ASSURANCE CO. LTD.,
T.P. HUB, MAHALAKSHMI CHAMBERS,
M.G. ROAD,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI. JANARDHAN REDDY., ADVOCATE FOR R1
SRI. M P SRIKANTH, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 4.7.2015 PASSED IN MVC
NO.229/2014 ON THE FILE OF THE JUDGE, COURT OF SMALL
CAUSES, 26TH ACMM,(SCCH-09), BENGALURU, DISMISSING THE
PETITION FOR COMPENSATION.
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MFA No. 2590 of 2016
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
ORDER
The above appeal is filed by the claimant challenging the
judgment and award dated 4.7.2015 passed in MVC
No.229/2014 by the Judge, Court of Small Causes and XXVI
ACMM (SCCH-09)1, wherein the claim petition filed by the
claimant has been dismissed by the Tribunal.
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 11.12.2012
when he was proceeding in car bearing No.KA-14/N 115 along
with his colleagues, the said car was being driven in a rash and
negligent manner hit against a railway gate as a road hump
was not observed by the driver of the car causing the accident
in question, as a result of which the claimant sustained
grievous injuries. Claiming compensation for the said injuries,
a claim petition was filed arraying the insurer and owner of the
car as respondent Nos.1 and 2 respectively. The insurer and
Hereinafter referred to as the 'Tribunal'
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owner of the car entered appearance and filed their statement
of objections.
4. The claimant examined himself as PW.1, a doctor as
PW.2 and another occupant as PW.3. Exs.P1 to P31 were
marked in evidence. The representative of the insurer was
examined as RW.1 and Exs.R1 marked in evidence. The
Tribunal by its judgment and award dated 4.7.2015 dismissed
the claim petition. Being aggrieved, the claimant has filed the
above appeal.
5. Learned counsel for the appellant assailing the
judgment of the Tribunal vehemently contends that
immediately upon the occurrence of the accident the claimant
has taken treatment at two hospitals as is forthcoming from
Exs.P11 and P12 and thereafter was admitted to Hosmat
Hospital, the medical records of which have been produced as
Exs.P13, P28 and P29. That a mistake has occurred while
making entries in the medical records of the Hosmat Hospital
due to the information given by the son of the claimant who
was not traveling in the car at the time of the accident or was
an eye-witness to the accident. That the said mistake that was
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crept in the records of the Hosmat Hospital was rectified by
furnishing the police documents and thereafter the records of
the Hosmat Hospital were subsequently corrected. It is further
submitted that the claimant has examined the eye-witness to
the accident who has categorically deposed that the claimant
was traveling in the said car and the finding of the Tribunal by
placing reliance on the entries made in the records of the
hospital of Hosmat Hospital where it was earlier erroneously
stated that the claimant was driving the car has been relied
upon by the Tribunal which is erroneous and the said finding is
required to be interfered with. Further, the driver of the
vehicle having pleaded guilty as is forthcoming from the
records of the criminal Court, the Tribunal has erred in
dismissing the claim petition. It is further contended that the
first respondent - insurer has paid the claim made by the
second respondent - owner of the vehicle towards damage of
the vehicle and hence, the first respondent - insurer is liable to
pay the compensation for the injuries sustained by the claimant
in the said accident in question. Hence, he seeks for allowing of
the above appeal and consequently for allowing the claim
petition and for award of compensation.
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6. Per contra, learned counsel for the first respondent
- insurer referring to various material on record submits that a
false claim has been made by the claimant which is an
employee of the second respondent - insurance company,
which is also the owner of the car only with a view to get
compensation. It is further submitted that there has been a
delay in lodging the complaint which has not been explained by
the claimant. It is further submitted that the Tribunal has, in
detail appreciated the oral and documentary evidence available
on record and dismissed the claim petition, which ought not to
be interfered with by this Court in the present 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 accident is alleged to have occurred on
11.12.2012. The complaint has been lodged on 22.5.2013 as is
forthcoming from the FIR (Ex.P1). It is further relevant to note
that the complaint has been lodged by the claimant by sending
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a letter dated 19.2.2013 by post and upon receipt of the same
by the jurisdictional police station on 22.5.2013 the FIR was
registered. The claimant in the claim petition has not explained
the delay in filing the complaint. In the affidavit by way of
evidence the claimant has stated that on 11.12.2012 the police
from Birur Police Station had come to the Pathre K.Shivappaiah
Government Hospital, Birur and took statement of the all the
injured. Later, on 19.2.2013 that he sent the complaint letters
to Birur police station and Arasikere Railway Police Station and
that he did not receive any answer to the said letters. That on
20.5.2013 he sent one more complaint to the Arasikere Railway
Police station and on receipt of the said complaint the police
registered the case.
9. It is forthcoming from the aforementioned that
although the claimant has stated in his affidavit by way of
evidence that the police have recorded the statement of the
injured persons, there is no material on record to indicate the
same. If the police officials had in fact recorded the statement
of the injured there would have been some material on record
to indicate the same. Also there has been no follow up either
by the claimant or by the other occupants of the car with
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regard to the police authorities for the statement recorded by
them and it is only after the letter dated 19.2.2013 that the FIR
has been registered.
10. The Tribunal while appreciating the aspect regarding
delay, has noticed that the delay has not been explained by the
claimant. It is further relevant to note that the claimant
himself being working as a Manager in the New India Assurance
Company, the Tribunal has appreciated the delay in registration
of the FIR from the point of view of the claimant being an
official or Manager of the New India Assurance Company.
11. Another aspect that is to be noted as is forthcoming
from Ex.P11 is that on 11.12.2012 at about 1.55 pm., the
claimant has gone to Pathre K Shivappaiah Government
Hospital. Thereafter, the claimant has gone to the Fortis
Hospital at about 7 pm., as is forthcoming from Ex.P12.
Subsequently, the claimant has been to the Hosmat Hospital
wherein, outpatient records (Ex.P28) demonstrates that he was
brought by his son Nithin and in the history of the injury it is
recorded as alleged history of RTA while driving a car at 1 pm.,
and in the inpatient record of Hosmat Hospital (Ex.P29) it is
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stated in the initial assessment form that the claimant was
brought due to alleged history of RTA while driving a car at 1
pm., on 8.12.2012 when it hit a tree.
12. It is further relevant to note that there is no
material on record to demonstrate that the other occupants of
the car have sustained any injury and they have taken any sort
of medical treatment or first aid either at the local hospital or
subsequently at the hospital at Bengaluru. The complete
silence from the documentary material on record regarding the
same would also cast a shadow of doubt on the case putforth
by the claimant.
13. It is clear that in the inpatient and outpatient record
of Hosmat hospital Exs.P28 and P29 it is stated that the
claimant was admitted with a history of a road traffic accident
while driving a car. The discharge summary issued by the
Hosmat Hospital which is a part of the outpatient record
(Ex.P28) also shows the history as alleged history of RTA while
driving a car on 11.12.2012. In the discharge summary
(Ex.P13) issued by the Hosmat Hospital it is stated that the
alleged history of RTA while travelling in a car on 11.12.2012.
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14. It is also relevant to note here that the discharge
summary (Ex.P28) has been signed by the Registrar on
18.12.2012 i.e., on the date of discharge. Whereas, the
discharge summary (Ex.P13) has been attested by one
Dr.Mukul Singhal. However, the date of attestation is not
mentioned.
15. It is the vehement contention of the learned
counsel for the appellant/claimant that the entry when the
claimant was admitted at Hosmat Hospital was erroneously
made based upon the statement made by the son of the
claimant namely Nithin who was not an eye witness to the
accident and that subsequently the said error has been rectified
by furnishing the police records. However, there is no material
on record in support of the said contention inasmuch as in the
hospital records there is no letter or request made either by the
claimant or his son Nithin for rectification of the same. The
said son of the claimant has not been examined in the present
proceedings. Further, the doctor who was examined as PW.2
has stated that he was part of the team of doctors who treated
the claimant. However, PW.2 has not deposed with regard to
any errors made in the medical records produced by the
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hospital and has also not spoken with regard to any request for
rectification of the said medical records.
16. The claimant has not produced any document nor
examined any witness to explain regarding the alleged error in
the entries made in the records of the Hosmat Hospital and the
same casts a doubt as to the manner of occurrence of the
accident as is sought to be alleged by the claimant in the claim
petition.
17. It is further relevant to note that an eye witness
PW.3 has been examined who has stated that one N.Sathish
was driving the car. In this context, it is pertinent to note that
the car belonged to the New India Assurance Company and the
claimant and PW3 were both the employees of the said
company. It is further forthcoming that they were travelling in
the insured car in respect of an association work and it was
personal work and not an official work. However, the driver of
the car was not examined. Also there is no material on record
to indicate as to whether he was a hired driver or an employee
of the company or a member of the association.
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18. Learned counsel for the appellant vehemently relies
on the judgment of the criminal Court (Ex.P8) wherein, the said
driver Sathish who was arrayed as an accused has pleaded
guilty in the said proceedings. The plea of the accused - driver
will not in any way aid the claimant in proving the accident in
question having regard to the various inconsistencies as noticed
above.
19. With regard to the filing of the police complaint
although it is stated that despite the letter dated 19.2.2013
sent to the Birur police station and Arasikere Railway Police
Station since the claimant did not receive any answer, on
22.5.2013 he sent another complaint letter to Arasikere Railway
Police Station, it is relevant to note that the letter dated
19.2.2013 is shown as having been received on 22.5.2013 by
the Arasikere Railway Police Station which is the basis for
registration of the FIR on 22.5.2013.
20. Although in the said letter dated 19.5.2013 and in
the affidavit by way of evidence the claimant has stated that
the police have recorded the statements when they visited the
Birur Hospital, it is relevant to note that PW.3 has not stated
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regarding any statement recorded by the police authorities
from the Birur Hosital and there is no document produced with
regard to any statement recorded by the police authorities from
either PW.3 or the alleged driver N.Sathish. The claimant has
not examined the investigation officer in this regard.
21. Although PW3 has sated that he sustained minor
injuries and he took first aid treatment at the government
hospital at Birur on 11.12.2012 and advised further treatment
at a major hospital, no records with regard to any treatment
availed by him is produced. There is also no document
produced with regard to any treatment availed by the alleged
driver N Sathish.
22. It is forthcoming that the Tribunal has in detail
examined the oral and documentary evidence available on
record and upon noticing the discrepancies in the entries made
in Exs.P28 and P29 as well as Ex.P13, the Tribunal has recorded
a finding that few months after the accident, with an intention
to get compensation a false theory was created by stating that
one Sathish was driving the car and the claimant was travelling
in the same.
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23. Further, the Tribunal has also appreciated the
contention of the claimant that respondent No.1 - insurer
honoured the own damage claimed by respondent No.2 -
owner with regard to the damages caused to the car. However,
as rightly noticed by the Tribunal the factors for considering a
own damage claim for a vehicle damage is different from
awarding of compensation by the Tribunal under Section 166 of
the MV Act.
24. The Tribunal has also considered the contention of
the claimant that the driver had pleaded guilty before the
criminal Court and has rightly recorded a finding that the same
will not in any manner aid the case of the claimant in proving
that the accident was caused in the manner as averred in the
claim petition.
25. As rightly recorded by the Tribunal, the claimant
has failed to aver a satisfactory explanation for the delay of 2
½ months in loding the complaint and the delay of 6 months in
registering the FIR. Further, the aspect that the claimant as
well as PW.3 are officials of the New India Assurance Company
who was the owner of the car is another fact wherein the
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claimant and the other occupants of the car being well aware of
the procedure that is required to be followed upon occurrence
of the accident, the said unexplained delay would adversely
affect the case of the claimant.
26. Reliance placed by the learned counsel for the
appellant on the case of Jai Prakash v. National Insurance
Co.Ltd.,2 will not aid the case of the appellant having regard to
the fact that in the said case directions have been given by the
Hon'ble Supreme Court to various persons including the police
authorities, Claims Tribunal, as also suggestions for
legislative/executive intervention so as to deal with issues
arising due to various kinds of motor accidents.
27. Reliance placed by the learned counsel for the
appellant in the case of Gohar Mohammed v. Uttar Pradesh
State Road Transport Corporation and ors.,3 will not aid
the case of the appellant as in the said case the question that
arose for consideration was with regard to the driver holding a
valid licence and a valid permit. The Hon'ble Supreme Court
noticed its earlier directions given in the case of Jai Prakash2.
LAWS(SC)-2009-12-42
AIR Online 2022 SC 1515
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28. Learned counsel for the appellant further relied on
the judgment of the Hon'ble Supreme Court in the case of
National Insurance Co.Ltd., v. Chamuneswari4 wherein the
Hon'ble Supreme Court has held that having regard to the
evidence of PWs.1 and 3 in the absence of any rebuttal
evidence wherein the driver of the vehicle was not examined,
the testimony of PWs.1 and 3 was accepted. Further, it was
held that if any evidence before the Tribunal runs contrary to
the contents of the FIR, the evidence recorded before the
Tribunal should be given weightage over contents of FIR. There
is no dispute as to the said proposition of law. However, the
claimant in the present case has failed to explain the various
inconsistencies in the case put forward by him.
29. Learned counsel for the first respondent - insurer
relied on the judgment in the case of North West Karnataka
Road Transport Corpoiration v. Gourabai & Ors.,5 wherein
the Hon'ble Supreme Court noticing a reference made in the
evidence of the doctor that the deceased suffered head injury
due to fall at his house, set aside the judgment of the Tribunal
LAWS(SC)-2021-10-1
(2009) 15 SCC 165
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as well as the High Court and dismissed the claim petition by
relying on the evidence of the doctor.
30. In the present case, it is clear and forthcoming that
the claimant has not explained the inconsistency in the records
of the Hosmat Hospital at Exs.P28 and P29 as compared to the
case put forth on the Claim petition. Further he has not
adequately explained the delay in lodging the complaint as
noticed above. There are various inconsistencies in the case
putforth by the claimant as to the manner of occurrence of the
accident as averred in the claim petition and the steps taken
thereafter. The Tribunal has adequately appreciated the oral
and documentary evidence available on record and dismissed
the claim petition.
31. The Tribunal, this Court as well as the insurance
companies are constantly dealing with malice of fake and false
claims which are initiated with the sole purpose of claiming
compensation by taking recourse to the provisions of the Motor
Vehicles Act, 19886. The Insurance Companies are constantly
watchful of such claims and ensure that even a faint indication
Hereinafter referred to as the 'Act'
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of a claim being fake/false is effectively contested to prevent
misuse of the provisions of the Act.
32. In the present case, what is disheartening to note
is that the claimant himself was an employee of a nationalized
insurance company and the insured vehicle was also owned by
the said insurance company. While the occurrence of the
accident is indeed unfortunate and the injuries sustained are
grievous where the claimant has suffered irreparable pain, the
same does not in any manner justify the course adopted of
attempting to create a false story only for the purpose of
securing an award of compensation from the Tribunal.
33. Upon a re-appreciation of the same, as noticed
above, the appellant has miserably failed in demonstrating the
finding of the Tribunal is in any manner erroneous or contrary
to the material on record and the same is required to be
interfered with by this Court in the present appeal. Hence, the
question framed for consideration is answered in the negative.
34. In view of the aforementioned, the following order
is passed:
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ORDER
i) The above appeal is dismissed;
ii) The judgment and award dated 4.7.2015 passed in
MVC No.229/2014 by the Judge, Court of Small
Causes and XXVI ACMM (SCCH-09), is affirmed.
No costs.
Sd/-
JUDGE
ND
