Karnataka High Court
Mustarin Harlapur vs Palam Maheshar Reddy on 5 March, 2024
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NC: 2024:KHC-D:4857
MFA No. 100700 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100700 OF 2015 (MV-I)
BETWEEN:
KUMARI. MUSTARIN HARLAPUR,
AGE: 17 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY
GUARDIAN FATHER ASHRAF ALI HARLAPUR,
S/O. ASADULLAH HARLAPUR,
AGE: MAJOR, OCC: PVT. EMPLOYEE,
R/O. ADARASH NAGAR-GADAG.
...APPELLANT
(BY SRI. HANUMESH M. DESAI, ADV. FOR
SRI. N. D. GUNDE, ADVOCATES)
AND:
1. SHRI. PALAM MAHESHWAR REDDY,
S/O. P. NARAYANA REDDY,
AGE: MAJOR, OCC: BUSINESS,
R/O. H.NO.4-194, BETHAMCHERLA,
DT: KURNOOL, ANDRA PRADESH.
Digitally signed
by JAGADISH T 2. THE BAJAJ ALLAIANZ GENERAL
R
INSURANCE COMPANY LTD,
Location: HIGH
COURT OF BY ITS MANAGER,
KARNATAKA V. A. KALBURGI MANSION,
LAMINGTON ROAD,
OPP. CORPORATION OFFICES, HUBLI.
...RESPONDENTS
(BY SRI. S. K. KAYAKMATH, ADV. FOR R2;
NOTICE TO RESPONDENT NO.1 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RELEVANT
RECORDS AND ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND AWARD DATED 13.01.2015 PASSED BY THE ADDL.
DISTRICT AND SESSIONS JUDGE-GADAG IN M.V.C NO.307/2011, BY
AWARDING THE MAXIMUM COMPENSATION AS CLAIMED BY THE
APPELLANT, IN THE INTEREST OF JUSTICE AND EQUITY.
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MFA No. 100700 of 2015
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This appeal by the injured/claimant, who is a minor
represented by her father as natural guardian, seeking to
challenge the judgment and award dated 13.01.2015 passed in
MVC No.307/2011 by the learned Addl. District and Sessions
Judge and MACT, Gadag (for short, 'Tribunal'), whereby the
claim petition filed by the claimant under Section 166 of the
Motor Vehicles Act, 1988 was dismissed.
3. Brief facts of the case leading to filing of this appeal
are that on 22.07.2011, the appellant was coming back to her
house after attending the tuition class, at that time, driver of
the Truck bearing registration No.AP-21/5-3799 came from
Mulgund Naka side from back side in high speed in a rash and
negligent manner and dashed to the appellant/injured. Due to
which, the appellant sustained fracture of right hand.
Immediately, she was shifted to Dr.M.K.Kuradagi Hospital,
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where she took treatment as indoor patient from 22.07.2011 to
21.08.2011. It is further averred that her parents spent a sum
of Rs.1,00,000/- for treatment and Rs.30,000/- for nursing
charges. Thus, sought compensation of Rs.7,30,000/-.
4. Respondent No.2/Insurance Company having
entered appearance filed objections denying the averments
made in the claim petition. It is averred that no such accident
has taken place. Thus, sought dismissal of the claim petition.
5. During trial, father of the appellant examined as
PW1 and one doctor examined as PW2 apart from marking the
documents as Ex.P1 to P38. The respondents examined one
witness as RW1 and marked two documents as Ex.R1 and R2.
The Tribunal after considering the rival contentions has come to
a conclusion that there is delay in filing the FIR and PW2-
Doctor, who is a treated doctor, has not sent intimation of the
road accident to the jurisdictional police, hence, proceeded to
disbelieve the accident and dismissed the claim petition.
6. Heard the arguments of learned counsel
Sri.Hanumesh M Desai, for Sri.Neelendra D Gunde, learned
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counsel for the appellant/injured and learned counsel
Sri.S.K.Kayakamath, for the respondent/Insurance Company.
7. Learned counsel Sri.Hanumesh M Desai for the
appellant/claimant submits that the Tribunal has committed
grave error in recording a finding that there is delay in lodging
information, however, there is no delay at all, as the accident
has taken place on 22.07.2011 and on the same day,
information is furnished to the police and FIR is registered. He
further argues that the Tribunal has recorded a finding that
PW2-doctor has failed to furnish information to the police with
regard to MLC and disbelieved the accident, such finding of the
Tribunal is contrary to the material available on record. He
further submits that the appellant has suffered major injuries in
the road accident, hence, just and appropriate compensation
would be awarded by setting aside the impugned judgment and
award of the Tribunal.
8. Per contra, Sri.S.K.Kayakamath, learned counsel for
respondent No.2/Insurance Company supports the impugned
judgment and award of the Tribunal and submits that the
Tribunal after analyzing the entire evidence on record has given
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a categorical finding that there is doubt with regard to the
accident in question. Hence, such finding cannot be interfered
with in this appeal. He submits that if this Court comes to a
conclusion that the accident has taken place, then award of
compensation should be based on the decision of the Hon'ble
Apex Court in the case of Master Mallikarjun Vs. Divisional
Manager, National Insurance Company Limited &
Another1. Thus, seeks to dismiss the appeal.
9. Having heard the arguments of learned counsel for
the parties and on perusal of the appeal papers including
Tribunal records, the following points would arise for
consideration in this appeal:
a) Whether the Tribunal is justified in rejecting the
claim petition?
b) Whether the appellant is entitled for
compensation for the injuries sustained in the
road accident on 22.07.2011?
10. Answer to the above points would be in the
'negative' and 'affirmative' for the following reasons:
2014(14) SCC 396
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11. The claim petition was filed by father of minor
injured stating that on 22.07.2011, when his daughter was
coming back to his residence after attending tuition class,
driver of the truck bearing registration No.AP-21/5-3799 came
from Mulgund Naka side from hind side and dashed to her.
Due to the said impact, his daughter sustained grievous injuries
and took treatment at Dr.M.K.Kuradagi, Hospital for a period of
one month. The Tribunal considering the evidence available on
record has recorded a finding that there is delay in lodging the
FIR. The said finding of the tribunal is contrary to the evidence
available on record. Immediately after receipt of information,
Gadag Traffic Police have registered the information of the
accident in Crime No.23/2011 on 22.07.2011. Hence, there is
no delay in lodging the FIR. Further finding of the Tribunal that
PW2-doctor, who gave treatment to the appellant/injured minor
ought to have intimated the jurisdictional police with regard to
the accident in question by entering the same in MLC register.
This Court is of the considered view that any lapse on the part
of PW2-doctor, cannot be the basis to reject the claim petition
filed by the injured. In the instant case, based on the
information given by uncle of the minor claimant, FIR was
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registered in Crime No.23/2011 by the police on the same day.
Hence, the finding of the Tribunal with regard to non-intimation
by PW2 with regard to motor accident to the police has no
relevance and same cannot be the basis to reject the claim
petition. This Court on perusal of the investigation material and
the evidence on record is of the considered view that the
Tribunal has committed grave error in rejecting the claim
petition. Accordingly, the impugned judgment and award of the
Tribunal requires to be set-aside.
12. Insofar as award of compensation, the
appellant/injured has taken treatment with Dr.M.K.Kuradagi,
for a period of one month and the said doctor has been
examined as PW2 and issued Wound Certificate at Ex.P6. The
injuries referred in Ex.P6 are as under:
a) Avulsion of the skin over right arm,
b) Fracture of right lateral wall of orbit;
c) Anterior wall of right maxillary and left mastoid
fracture.
13. On close scrutiny of the evidence of PW2, Injury
Certificate at Ex.P6 and the Disability Certificate at Ex.P34, this
Court is of the considered view that the appellant has suffered
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disability to an extent of 10% and the same is assessed for the
purpose of determining the compensation. Disability Certificate
issued by the doctor PW2 under Ex.P34 stating that the
appellant has sustained disability to an extent of 30% to 35%
is on the higher side, as the appellant has sustained two
fractures, which are facial injuries. Therefore, this Court taking
note of the evidence of PW2, Injury Certificate at Ex.P6 and the
Disability Certificate at Ex.P34 and keeping in mind the law laid
down by the Hon'ble Apex Court in the case of Master
Mallikarjun referred supra, holds that as the
appellant/claimant has sustained disability of 10%, she is
entitled to a sum of Rs.1,00,000/- under the head of pain and
suffering and loss of amenities on account of permanent
disability. The claimant has produced medical bills amounting
to Rs.63,664/- and therefore, she is entitled for the same
under the head of medical expenses. Due to the injuries
sustained, the appellant/injured was an inpatient for a period of
one month, hence, she is entitled for a sum of Rs.15,000/-
towards attendant, food, nourishment, conveyance etc. Thus,
in all, the claimant would be entitled to total compensation of
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Rs.1,78,664/- with interest at the rate of 6% per annum from
the date of petition till realization.
14. For the foregoing reasons, I proceed to pass the
following:
ORDER
a) The appeal stands allowed.
b) The impugned judgment and award passed by
the Tribunal is hereby set-aside. The claim
petition filed by the appellant/claimant is
partly allowed holding that she is entitled to
total compensation of Rs.1,78,664/- with
interest at the rate of 6% per annum from
the date of petition till realization.
c) The respondent/insurance company shall
deposit the entire compensation amount
along with accrued interest before the
Tribunal within a period of six weeks from the
date of receipt of certified copy of this
judgment.
d) On such deposit, 50% of the same shall be
kept in fixed deposit in the name of appellant
for a period of three years with liberty to her
to withdraw periodical interest accrued
thereon and remaining amount shall be
released in favour of the appellant.
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e) Registry to transmit the records to the
Tribunal forthwith.
f) Draw modified award accordingly.
Sd/-
JUDGE
JTR
